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Thursday, 7 December 1905

Senator MILLEN - But surely, if the trade mark is not registered under the State law, there can be no legal and exclusive right to it?

Senator Keating - If an unregistered trade, mark be used for the purpose of misrepresentation, the proprietor will have an action at common law for fraud. That is the extent of his right ; the action will not be for infringement, but one at common law for, fraud.

Senator MILLEN - But if such a mark does not carry exclusive right, how can any one be called its " proprietor " ?

Senator Keating - He is always referred to as the proprietor, arid that is how we dealt with him in considering the Bill last session.

Senator Best - As a matter of fact, he is the proprietor.

Senator MILLEN - That is the point on which I wish to be quite clear. If the mere using of the trade mark does not give him exclusive and proprietary rights in it, the clause is unnecessary, and the amendment is even more unnecessary.

Senator KEATING(Tasmania- Honorary Minister). - A person who uses a mark, and has used it in such a way that, in the eyes of the public, it has become identified' with his goods, even though he mav not have registered it, has the exclusive . right to its use. No one else is entitled to use that mark upon other goods which may perhaps be of inferior quality, in such a manner as to lead the public to believe that they are the goods of the person first mentioned without -rendering himself liable to prosecution for the fraudulent use of the mark in such a waxas to deceive the public, to the detriment of the first person. If the person entitled to the use of the mark in this way registers it as a trade mark, he gets other, remedies given him by the Statute, which he would not ordinarily have at common law.

Motion agreed to.

Clause 12 -

For the purposes of this Act an office shall be established which shall be called the Trade Marks Office.

House of Representatives' Amendment.- After " Office " add " and a sub-office shall be established in every State other than the State in which the Trade Marks Office is established."

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