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Tuesday, 28 November 1905

Mr ISAACS (Indi) (Attorney-General) . - I am thoroughly in accord with the intention of the honorable and learned member, and I think that some such amendment should be made. I would point out, however, that the language follows that' adopted in the Judiciary and other Acts of this Parliament.

Mr Higgins - Not in all of them, because in several cases the word " Judge " was struck out at mv instance.

Mr ISAACS - I do not know whether the meaning of the word " thereof " would be perfectly clear, if the clause were amended as proposed, but apparently it would. I am prepared to agree to the amendment at present, with a view to considering the matter afterwards.

Amendment agreed to.

Mr. ISAACS(Indi- Attorney-General). - I move -

That the words "and 'Applicant' include a Body corporate and firm," lines 10 and 11, be left out, with a view to inserting in lieu thereof the words " includes a body corporate and a firm."

Mr Glynn - Does not the Acts Interpretation Act provide for that?

Mr ISAaCS - Yes, but over and over again we have included definitions in Acts in order to prevent trouble. It is necessary to adopt the amended definition I propose, because under the Acts Interpretation Act whilst " person " would include a body corporate it would not include a firm. If a particular firm wished to register a trade mark the mere use of the word "person " would not give them that right.

Amendment agreed to.

Mr. GLYNN(Angas). - I now desire to move the amendment which I have indicated my intention of submitting.

Mr Isaacs - I understand that the honorable and learned member wishes to insert a definition of "trade mark."

Mr GLYNN - Yes.

Mr Isaacs - Would it not be better to insert the definition in its proper alphabetical order in the clause ?

Mr GLYNN - I think not. I think we ought to define trade mark before we define the class of trade mark with which we are proposing to deal. That is what is done in English legislation. When I found that the draftsman had adopted another method I did not at first propose to interfere with it, but I have since recognised the importance of moving my amendment out of its alphabetical order. I have already quoted one or two definitions of " trade mark," in order to show what objects such' marks are intended to achieve. I now wish to refer to the judgment of Lord Esher in the case of Richards v. Butcher, 1891, II. Chancery Div., page 543-

You use the thing as a trade mark if you use it in business, or, as it is often said, in the market, as a mark to denote your goods, and to distinguish them from the goods of any one else.

Is it to be supposed that the union label would effect this purpose? I understand that the measure is not intended to shift property, but to indicate where the property really is. According to Lord Esher the primary object of a trade mark is to indicate certain articles as. the goods of the owner of the trade mark. Then Kerly says -

The protection afforded to trade marks has for its object the protection of trade only.

That is significant -

In Batt and Co. v. Dunnett, Lord Halsbury, in the course of the argument, observed : The Trade Marks Acts are not for copyright in marks; they are to protect trade marks. If you have no goods you are claiming copyright only, you are not claiming for the purpose of protecting your trade.

When you begin to dissociate the ownership of the goods in the sense used from the ownership of the mark you are merely claiming copyright. Thus, if the union label provisions mean anything they will amount to a claim of copyright as against: other persons.

Mr Frazer - Does the honorable and learned member argue that provision for union labels should be made in the Copy-, right Bill?

Mr Watson - They would be objected to anywhere; if they were provided for in that Bill they would still be objected to.

Mr GLYNN - I think that it would be very proper to question the constitutionality of making any such provision in that Bill. But in England, where the question of constitutionality could not arise, Lord Halsbury 's dictum to the effect that a label is not necessarily a trade mark cannot be questioned. But what is claimed in this case is virtually a copyright. Under the Imperial Trade Marks Act of 1905, if a person be an expert examiner of goods, he can register his trade mark. That is the only exception made by recent English legislation.

Mr Liddell - Why not omit from this Bill the union label provisions?

Mr GLYNN - I am endeavouring to bring the Bill into harmony with the latest English legislation. The earlier English Acts dealing with this subject contained no definitions. Itis true that there was a definition in one Act which was incorporated with the Merchandise Marks Act of 1887, only for the purposes of that Act, but there was no definition in what are known as the Registration Acts, and the' measure under consideration is, in essence, a Registration Bill. The English Bill of 1904, However, did include a well-drawn definition, which is embodied in the Act of 1905. That definition, I think, was suggested after an examination of the Bill by experts. I believe that a Committee of the House of Commons inquired into this matter in 1904-5, so that the amendments made by recent legislation were made with great deliberation--

Mr Conroy - And as the result of the best legal thought on the matter.

Mr GLYNN - There is no doubt of that. I have examined the evidence which . was taken by that Committee, and I can see that the amendments which have been made in the earlier English legislation have been deliberately made with the object of bringing the trade marks legislation of the old country right up to date. Honorable members, I think, will recognise the effect of omitting from this Bill the definition which I propose to insert, and which reads -

A " trade mark " shall mean a mark used or proposed to be used upon or in connexion with goods for the purpose of indicating that They are the goods of the proprietor of such trade mark, by virtue of manufacture, selection, and certification dealing with or offering for sale.

I say that the effect of inserting that definition will be to confine -the Bill to its proper scope, so that it shall deal only with trade marks which are truly such, in that they indicate, as I have already mentioned, ownership of goods, in the sense defined, or expert examination of goods. The omission of this definition may have been accidental. But when one looks at other portions of a Bill,, and finds that a similar accident has led to a like result there, one is naturally inclined to be a little suspicious of the object which the draftsman had in view. For instance, clause 16, which deals with the essential particulars of trade marks, provides -

The essential- particulars of a registrable trade mark shall be one or more of the following particulars : -

(c)   A distinctive device, mark, brand, heading, label, or ticket.

Now, the words " mark, brand, heading, label, or ticket," are not to be found in the latest English legislation!, though undoubtedly they are contained in section 64 of the English Act of 1888. Consequently I- am at least entitled to say that this Bill is not up to date. Some people would be inclined to surmise that these words have been inserted - ignoring the later English legislation - in order to fit in with the union label clause.

Mr Isaacs - Does the honorable and learned member suggest that?

Mr GLYNN - I said that some people might surmise that. These words - which have been left out of the English Acthave been inserted, but to compensate foi the words that have been inserted the draftsman has omitted a definition of "distinctive" marks.

Mr Isaacs - Does the honorable and learned member say that the words " label " and " ticket " are left out of the latest English Act?

Mr GLYNN - Yes ; I think I can show the honorable and learned gentleman that.

Mr Isaacs - Will the honorable and learned member look at the interpretation section of the English Act?

Mr GLYNN - If the Attorney-General will allow me, I have already given one definition from that section.

Mr Isaacs - The honorable and learned member's statement is quite wrong,.

Mr GLYNN - Perhaps it is ; and if so, it is the duty of the Attorney-General to set me right. However, I intend to deal with the points as they present themselves to me. I am referring now to the essential particulars of trade marks, and the Attorney-General is alluding to the definition of " mark," in the interpretation section of the English Act. I say that the word " distinctive " is not included in that Act as a special definition of distinctive mark.

Mr Isaacs - The honorable and learned member stated that the words " label " and " ticket " had been left out of the English Act.

Mr GLYNN - The word " distinctive," as it is used in the English Act, accomplishes practically the same result as does the definition of trade mark in this Bill. It indicates that the proprietor of a distinctive mark is also the proprietor of the goods. The definition is not inserted in the English Act amongst the general definitions, but it is specially included in section 9 which deals with the essential particulars of trade marks, and which reads -

For the purposes of this section " distinctive " shall mean adapted to distinguish the goods of the proprietor of the trade mark from those of other persons.

My argument is that in the union label clauses this special distinction is omitted for the benefit of a particular section.

Mr Watson - There is no reason why it should be designed to exclude a particular section.

Mr GLYNN - In clause 23, the draftsman has adopted the provision which is contained in the English Act. That clause reads -

A trade mark must be registered in respect of particular goods or classes of goods as prescribed.

The Attorney-General, however, proposes to substitute " may " for " must." I should like to know the reason for this alteration.

Mr Isaacs - I do not think there is any difference between the two .words.

Mr GLYNN - When we find that all these amendments conduce to the same end, and practically render unnecessary the union label provisions of the Bill - because the measure, as drafted, will attain the end in view without them - we are naturally suspicious of the object of the draftsman in modifying the Bill, so that it does not accord with the latest English legislation upon the subject.

Mr Hutchison - Is there any reason why we should slavishly follow Englishmade legislation?

Mr GLYNN - No, except that we have been assured that it is quite up to date. I say that in this Bill we shall practically legalize the union label without the special clauses to be subsequently moved. The measure, in -the 'form in which it has been modified by the draftsman, covers a wider scope than should be covered by a Trades Marks Bill. I wish to confine the measure to its proper scope, and to make its provisions constitutional.

Mr Watson - The honorable and learned member wishes to make its provisions operate to the exclusion of a special class.

Mr GLYNN - That sort of ad ca0.tandum argument goes for naught. This Bill will not confer, upon th*e employer any special privilege.

Mr Watson - It will confer a special privilege on the employer under the protection of the State.

Mr GLYNN - The right to register a trade mark will be made reciprocal by the amendments. If they are defeated, the employer will be in no better a position than the employed

Mr Hutchison - Does the honorable and learned member say that his amendment would make the union label clauses of the Bill constitutional?

Mr GLYNN - No. At the same time, I think that by adopting it we shall prevent the Bill being challenged upon the ground of its unconstitutionality. Even if the amendments; of which notice has been given, are not carried, the Bill will still give effect to the union label.

Mr Isaacs - I do npt agree with the honorable and learned member.

Mr GLYNN - Upon that point, the AttorneyGeneral has not been quite as candid as he should have been.

Mr Isaacs - The honorable and learned member is not justified in saying that.

Mr GLYNN - I am not making any ungenerous representation. However, I have no desire to elaborate that point. I fail to understand why honorable members should be, so anxious to give a legal status to union labels - to legalize them in the sense of affording protection against the infringement of their copyright.

Mr Watson - There is nothing in pirating a union label, I suppose?

Mr GLYNN - There is no necessity for the introduction of these labels into Australia, such as may be said to exist in America. Wherever arbitration Acts are in force in Australia, unions have acquired such- a status that \they do not require this principle to be inserted in the Bill. The old unions might disappear, and as long as they remained organizations under the Arbitration Act labour would not be any the worse off.

Mr Watson - That does not affect the principle at issue.

Mr GLYNN - We are not here like philosophers, to deal with matters quite apart from the facts. I should be very sorry to insert in a Bill a provision as to principle which was divorced altogether from the question of expediency or some concrete result.

Mr Hutchison - What would be the position of unions where there was no State arbitration Act in force-?

Mr GLYNN - In all the States the position of unions, where protected by such laws, is so high, as compared with the status of unions in England and the United States, that they do not require these adventitious aids.

Mr Isaacs - On a point of order, Mr. Chairman, I am afraid tha1!- we shall not make any progress unless we confine our attention to the clauses immediately under consideration. I understand that the honorable and learned member is going to propose an amendment in this clause, and whilst I do not like to object to his referring to another clause by way of illustration, I feel that he is now roaming all over the Bill, and is discussing in advance something that we have yet to consider.

Mr GLYNN - At the very outset, I suggested, with a view to avoiding a duplication of debate, that upon the definition clause we might have a general debate on the union label clauses.

Mr Isaacs - Not upon this definition-, but when we come to the clauses relating to workers' trade marks.

Mr GLYNN - I am willing to adopt, that suggestion. My idea is that a general discussion at this stage would expedite the debate; but if it will suit the purpose of the Government to have a separate debate on the union label provisions, I shall offer no objection. At the same time, I feel that I am perfectly in order in making a general reference to other clauses. When I say that the status of unions in Australia is exceptionally high, I do not mean to suggest that I should not like to see a further improvement, if they were capable of improvement ; but they have mutual rights against one another which are not enjoyed by unions in England. In the United States, fierce disputes between capital and labour have been brought about chiefly by an attempt - which has been declared by the Supreme Court of America to be constitutional - on the part of employers to frame agreements excluding non-unionists from employment.

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