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Tuesday, 5 December 1905
Page: 6225


Mr LONSDALE (New England) - Suppose that in England, or elsewhere, a man did register a mark or symbol such as may be obtained by a union in the Commonwealth, and honestly put that ni 6:k on his goods, and that a union in Australia registered that mark as a trade mark. Surely it is not intended to punish the ann in England or elsewhere for doing that which he had a perfect right to do ! We ought not, by our legislation, to prevent such imports from coming in. I ask the Attorney-General to consider this matter very carefully.

Mr. ISAACS(Indi- Attorney-General). - I regret that I cannot accept the suggestion to amend the clause in this direction, because, if I did, it would break down the whole part. I cannot conceive that any one abroad can invent a mark which signifies that it is an Australian union mark, and then honestly apply it to goods being sent to Australia.


Mr McCay - But suppose that the mark has no reference to Australia, and simply consists of the words " Hatters' Union."


Mr Watson - It must not be an, imitation of one registered here.


Mr ISAACS - I should say that as we are legislating for ourselves it is difficult to imagine that any foreign mark can accidentally be such a close imitation of an Australian workers' mark as to be calculated to deceive.

Mr. LONSDALE(New England). - Suppose that a star, together with the words "Hatters' Union," or " Bootmakers' Union," is registered in England, and is honestly applied to goods made by unionists, but is similar to a label which has been registered here, should the English manufacturer be liable to punishment for honestly using his own mark to represent that his goods were made by union labour? It will be an outrage if we attempt to do anything of the kind. An amendment ought to be made in order to prevent that man from being punished.

Mr. GLYNN(Angas). - I notice that towards the end of sub-clause 1 the words " substantially identical with a labour mark" are used. These words are not contained in the legislation on which the clause has been framed. This is really an adaptation of the provisions dealing with the fraudulent application of trade marks contained in the Trade Mark Acts of the States and in Imperial legislation. I have compared the Statutes very carefully, and I can see that with certain omissions to make the clause more stringent it is simply a redraft, of course with such variations as are necessary for its general object. In the Commerce Act the words used are - or any mark so nearly resembling it as to be likely to deceive ; but in this clause the words used are - or any mark substantially identical with a labour mark, or so nearly resembling it as to be likely to deceive.

It is a pity to have two Federal Statutes directed to the very same end, but containing different methods of creating the offence. It will introduce confusion. In the Commerce Act it is provided that no person shall import any goods to which a false trade description is applied, and its definition of "false trade description" ends with the words - which makes the description false or likely to mislead in a material respect.

These are to some extent, similar to the final words of sub-clauseI of new clause 73 ; but in the Trade Marks Acts of the States and in the Imperial Act the same words are used as are employed in this clause. If the words " substantially identical with a labour mark " are retained, they must mean something different from the concluding words " So nearly resembling it as to be likely to deceive." That doubt will not exist under the Commerce Act or under the States laws. I think the AttorneyGeneral will agree that importations in violation of the principle of this provision are already covered by the Commerce Act. Not only is the wording of the provision different," but the penalty is one-half of that which is provided for in the Commerce Act.


Mr Isaacs - I am willing to make the penalty £100.


Mr GLYNN - Will not the honorable and learned gentleman consent to the excision of the words to which I have called his attention?


Mr Isaacs - No, I am afraid that a loop-hole would be left if I did.


Mr GLYNN - Perhaps the honorable and learned gentleman Will explain why the words " substantially identical " are retained? I do not know what the phrase means. It doesnot mean " similar,'' or "so nearly resembling it as to be likely to deceive.'"

Mr. ISAACS(Indi- Attorney-General). - To show the honorable and learned member for Angas that I am adopting the same phraseology as is used in other parts of the Bill, I desire to call his attention to clause 53, which reads in this way -

The rights acquired by registration of a trade mark shall be deemed to be infringed by the use in respect of the goods in respect of which it is registered, of a mark substantially identical with the trade mark, or so nearly resembling it as to be likely to deceive.

We have already passed that clause without objection, and' I do not see why we should not use the same language in this provision.

Proposed new clause, as amended, agreed to.

Amendments (by Mr. Isaacs) agreed to-

That the following new clauses be inserted : - 74A. - (1) A worker or association may register a workers' trade mark in the prescribed manner and shall thereupon be deemed the registered proprietor thereof, and be entitled to institute legal proceedings to prevent and recover damages for any contravention of this Part in respect of that trade mark.

(a)   A workers' trade mark may be removed from the register for the causes and in the manner prescribed, and subject thereto the registration of the trade mark shall continue for fourteenyears at the expiration of which it shall cease unless renewed in the manner prescribed.

(3)   A workers' trade mark shall not be capable of assignment either by act of the parties or by operation of law.

(4)   Parts III., IV., V., and VI. of this Act shall not apply in relation to workers' trade marks.

(5)   A workers' trade mark shall not be registered if it is substantially identical with any registered trade mark within the meaning of this Act or so nearly resembles it as to be likely to deceive. 75A. Nothing in this Part shall be so construed as to make it lawful for any person or association or combination of persons to do any act which it would have been unlawful for such person association or combination of persons to do before the commencement of this Act. 781.-(1) This Part shall apply to all goods included in or specified by a resolution passed by both Houses of the Parliament that in their opinion the conditions as to the remuneration of labour in connexion with their manufacture are fair arid reasonable.

(a)   A resolution shall be deemed to have been passed at the commencement of this Act, by both Houses of the Parliament that the conditions as to the remuneration of labour are fair and reasonable in respect of goods which are manufactured in any part of the Commonwealth under conditions as to the remuneration of labour prescribed, required, or provided in relation to the goods, by an industrial award or order, or an industrial agreement, under an industrial law.

(3)   In this Part " an industrial law " means any Act or State Act existing at the commencement of this Act and providing for conciliation or arbitration or both conciliation and arbitration, or the determination of the remuneration of labour in connexion with industrial matters or the manufacture of goods or any statutory modification amendment or re-enactment thereof respectively, or any Act or State Act passed after the commencement of this Act and declared by resolution of both Houses of Parliament to be an industrial law within the meaning of this Part; and " industrial award or order " includesany determination of any Special Board or Court under an industrial law.

(4)   A resolution passed or deemed to have been passed as aforesaid may be by both Houses of the Parliament revoked in whole or in part, and thereupon this Part shall to the extent of the revocation cease to apply. 78J. - (1) The Minister may cause to be designed" and registered a trade mark (in this Part called the Commonwealth Trade Mark), consisting of a distinctive device or label bearing the words " Australian Labour Conditions."

(2)   The Commonwealth trade mark shall not contain the name of or indicate any State.

(3)   Parts III., IV., V., and VI. of this Act shall not apply in relation to the Commonwealth; trade mark. 78K. - (1) Upon the registration of the Common wealth trade mark, the Minister shall be deemed to be the proprietor thereof, and shall be entitled to prevent the unauthorized application of the Commonwealth trade mark.

(2)   The rights of the proprietor of the Com monwealth trade mark shall be deemed to be infringed by the unauthorized application to goods of a mark identical or substantially identical with the Commonwealth trade mark, or so nearly resembling it as to be likely to deceive.

(3)   The Minister may sue to prevent infringement of the Commonwealth trade mark. 78L. The application of the Commonwealth trade mark to goods shall be deemed tobe unauthorized unless -

(a)   it is applied by or by direction of the first proprietor of the goods, and is so applied by the authority of the Minister; and

(b)   it is applied to goods to which this Part applies; and

(c)   the first proprietor of the goods has personally manufactured them, or has paid for the labour other than his own in connexion with their manufacture at least the minimum amount prescribed, required, or provided to be paid to persons actually making the goods by an industrial award or order, or an industrial agreement under an industrial law. 78M. - (1) The authority of the Minister to any person to apply the Commonwealth trade mark may be given either generally or in respect of specific goods, and shall be given if in his opinion the trade mark will not be applied except as authorized by this Part.

(2)   The Minister may revoke his authority in whole or in part if in his opinion a person to whom it has been given has applied or is likely to apply the trade mark in a manner unauthorized by this Part.

Amendment (by Mr. Isaacs) proposed -

That the following new clause be inserted : - 78N. - (1) No person shall wilfully infringethe rights of the Minister as proprietor of the Commonwealth trade mark.

Penalty : Fifty pounds.

(2)   No person shall knowingly sell or expose for sale, or have in his possession for sale or for any purpose of trade or manufacture, any goods to which any mark is applied in infringement of the rights of the Minister as proprietor of the Commonwealth trade mark.

Penalty : Fifty pounds.

Mr. McCAY(Corinella). - I should like the Attorney-General to tell me, whether he thinks that it is advisable for matters concerning infringements of the Commonwealth trade mark in connexion with specific cases to come before the Houses of Parliament. Is it advisable, for instance, that Parliament should have to consider whether John Brown and Company are to be allowed to use the Commonwealth trade mark or not? It seems to me that the House will be set a very difficult task.


Mr Isaacs - It is not Parliament that will have to deal with the matter.


Mr McCAY - I am considering the application of this proposed new clause to new clause 78 1.


Mr Isaacs - Parliament will only have to determine whether the law shall be applied; not as to the individual using the mark.


Mr McCAY - I understand that this is only to apply in cases where a State law is in existence?


Mr Isaacs - That is all.

Proposed new clause agreed to.

Amendments (by Mr. Isaacs) agreed to -

That the following new clauses be inserted : - 78 O. No person shall knowingly import into Australia any goods, not manufactured or produced in Australia, to which there is applied - (a) the Commonwealth trade mark, or

(b)   a mark substantially identical with the Commonwealth trade mark, or

(c)   a mark so nearly resembling the Commonwealth trade mark as to be likely to deceive.

Penalty : One hundred pounds in addition to any liability to forfeiture provided by law. 78P. The Commonwealth trade mark may, on the application of the Minister, be removed from the register in the manner prescribed.







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