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Thursday, 7 December 1905

Senator MILLEN (New South Wales) - There seems to be some doubt whether, if we inserted these words, it would still be left optional with the assignee to register, but I point out that if we introduce a time limit within which registration must take place, the clause will automatically provide its own penalty, as if the registration is not affected within the time prescribed^ there can be no registration. The insertion of the words will, therefore, insure registration of the assignment of d trade mark within- a reasonable time, and there will be the element of compulsion to which I have directed attention. As to the desirability in the interests of the public of such registration, it may be said that it matters .little to the public whether A or B is the proprietor of a certain- trade mark. Experience has shown, however, that it is desirable that the public should1 know who represent the trading corporations and firms with which they do business. In New South Wales, and, I believe also, in other States of the Commonwealth, it has been found necessary, in the interests of the public, to pass a law to compel people trading under other than their own names to register the fact. The same principle is involved here. The original proprietor of an assigned' trade mark might have secured a certain hold upon the public by reason of the reputable manner in which he conducted his bust.ness. If the trade mark was assigned to some one of whom the public had a less favorable opinion, it would be an advantage to him to continue to permit the public to assume that the original owner of the trade mark was still, using it. In my opinion, it is desirable in the interests of the public that registration of the assignment of a trade mark should take place within a reasonable time, and for that reason I support the amendment.

Senator KEATING(Tasmania - Honorary Minister). - I haVe just looked at the section of the English Act,, which provides that -

Subject to the provisions of this Act, where any person who becomes entitled to a registered trade mark by assignment, transmission or other operation of law, the Registrar shall, on request made in the prescribed manner, and on proof of title to his satisfaction, cause the name and address of such person to be entered on the register as the proprietor of the trade mark. Any decision of. the Registrar under this section shall be subject to appeal to the Court, or with the consent of the parties to the Board of Trade.

Honorable senators will see that there is no express provision with regard to time included in that section. I point out that these registrations have always been allowed to be effected at whatever time the assignee has thought desirable. Senator Clemons will bear me out that if he were to acquire by virtue of transfer a number of shares in any company it would be optional with him to register himself as the transferee.

Senator Givens - Not everywhere; and it is very undesirable anywhere.

Senator Clemons - The honorable and learned senator is only partially right.

Senator KEATING - I take the case, for instance, of landed property. A man has land transferred to him under the Torrens Act, or the corresponding Act in any State, and he can hold it for any time without registering the transfer.

Senator Best - Until the transfer is registered it has no validity, so far as the public are concerned.

Senator KEATING - That is so. If the assignee of a registered1 trade mark is content with his assignment without registration, why should we interfere with him ?

Senator Clemons - Only in the interests of the public.

Senator KEATING - If he chooses to register his assignment later on, why should we not let him do so? A man might, by assignment or transmission, be- come the owner of one or more registered trade marks. A particular trade mark might at the time, be of no commercial value to him, but three or four years later he might have gone into some industry in which it would be of use, and he would thereupon register his assignment of the trade mark in order that it might become his registered property, and he might have all the rights conferred by the Statute, and especially the right to proceed against any one fraudulently applying the trade mark to other goods. In the English Act, as well as in this Bill, the registration in such a manner as may be prescribed of an assigned trade mark is left optional with the assignee. If we impose a limit of time in such a way as to penalize the assignee, we shall be attaching to him conditions and obligations that we should long hesitate to impose under the circumstances.

Senator MILLEN(New South Wales). - The Minister's remarks induce me to again appeal to the Committee to accept the amendment. The honorable senator has referred to two classes of transfers in support of his contentionj, but his selections have been extremely unfortunate. The transfer of land from one individual to another affects those individuals only.

Senator Keating - So does the transfer of a trade mark.

Senator MILLEN - I venture to saythat the public is concerned in the transfer of a trade mark.

Senator Keating - No more, and no less, than in the transfer of land.

Senator MILLEN - Surely the honorable senator is ignoring altogether the purpose of a trade mark? If I purchase an allotment, or sell one to another person, the transaction has no material affect upon the general public.

Senator Best - It might or might not. The registered proprietor of land may secure credit on that account.

Seniator MILLEN. - There are certain disabilities connected with the omission to register mortgages. The general public, believing that a trade mark carries with it the guarantee of good workmanship and material supplied by the original owner, may be deceived fora long course of time by its transfer to some one having a less reputable name.

Senator Best - My remarks do not apply to mortgages only. Take the case of a man applying for credit. Before he gives him credit the man to whom he has applied makes, a search, and discovers that he is the registered proprietor of certain land, and yet a quarter of an hour afterwards a transfer of the land might be registered.

Senator MILLEN - The honorable senator must know that there is a certain disability where a mortgage is not registered, and under the land laws of New South Wales in many instances penalties and disabilities follow the omission to register a transfer. The Minister has told the Committee that the clause is similar to the English legislation on the subject. I think there is a tendency, which may not be confined to the honorable senator, when support is asked fora certain measure, to remind the Committee that the provision in question is to be found in " the English Act"

Senator Turley - We have had more English Acts thrown at us from the other side than would fill a book.

SenatorMILLEN. - I am inviting Seator Turley to join with me in deprecating the practice. If Senator Keating attaches value to this argument we should expect him to adopt the English Act in its entirety, but when we come to consider other amendments which will not be found included in the English Act, I have little doubt that the honorable senator will explain that we are a more enlightened, progressive, and up-to-date people, and propose to start where the English Act leaves off. The fact that no time limit is prescribed in the English Act is no reason why we should not prescribe such a limit here, and as no argument has been advanced! to show that it would be unwise to do so I again ask the Committee to accept the amendment of the House of Representatives' amendment.

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