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Tuesday, 28 November 1905

Mr KELLY (Wentworth) - The honorable member for Moira based his opposition to the amendment on the ground that an object in view, which he assumes is the whole object - the rendering invalid of the trade union label provisions - would not be achieved if it were agreed to; but the interjection of the honorable and learned member for Angas, I think, removes that objection. The honorable member thinks that this is not the stage at which to discuss the merits of the trade union label provisions, in which I agree with him, because, as the Attorney-General has pointed out, we cannot by definition limit any subsequent provisions of the Bill unless we delete the words " except where otherwise clearly intended." I do not suppose honorable members wish to delete those words, and cause the Bill, perhaps, to be re-drafted; but if they are "permitted to stand, no definition of a trade mark which we might- insert would necessarily affect the trade union label provisions. At the present time we are concerned only with whether we should or should not seek to define a term -which governs the whole measure. The measure is called a Trade Marks Bill, but there is nothing in it to indicate what a trade mark is. The Constitution gives us unlimited powers over trade marks, and the Attorney-General argues that we should, therefore, not attempt to limit those powers, but should exercise them to the full. I do not agree with the Attorney-General in his view that it is expedient to omit a definition of the trade marks with that end in view. When powers aTe conferred! upon us, we do not necessarily receive an injunction to use them to the fullest extent. We should exercise them just so far as we may consider it is expedient to do so.

Mr Isaacs - But the honorable member does not propose to leave some trade marks untouched.

Mr KELLY - No.

Mr Isaacs - We cannot widen the definition, but we may narrow it.

Mr KELLY - We could narrow the definition without affecting the ordinary users of the trade marks.

Mr Watson - Where is the necessity for narrowing it?

Mr KELLY - At present we know the uses to which trade marks can be put, and it is very easy for us to adopt a definition which would bring all the present users of trade marks within the scope of the Bill. .The Attorney-General told us, earlier in the debate, that each State had its own Trade Marks Act, and that the usages which have prevailed hitherto in the various States would be seriously interfered with if we limited our very wide powers over trade marks generally. I agree with him in his axiom, but not in his deduction. He assumes that we should interfere as little as possible with the trade mark users in the States, but surely we could make the definition wide enough to cover all the different usages in the States, and no more. If we adopt that plan, the holders of trade marks will know exactly where they stand, but if we omit .to define trade marks, we shall lead to endless litigation. Surely we should not render it necessary for persons to go before the Courts, in order to ascertain their true positions. The Attorney-General told us that any interpretation of the Constitution would necessarily involve immense litigation.

Mr Isaacs - I said that we should never reach any certainty in regard to many of these matters without some reference to the Courts. _

Mr KELLY - It should be our object as far as possible to prevent appeals to the Courts.

Mr Isaacs - I agree with that.

Mr KELLY - The best way in which we can do that is by adopting a definition of the term "trade mark," wide enough in itself to embrace all the existing usages in the Commonwealth, and yet not so wide as to leave room for doubt as to our meaning. I do not see why the AttorneyGeneral should object to that course being adopted. I can understand the fear of the honorable members of the Labour Party that any limitation of our powers might prove fatal to the inclusion of the union label proposals ; but no such result could accrue from the adoption of the amendment. All we should have to do would be to adopt some wider definition of "trade union label." I hope that the Attorney-General will see his way to accept the amendment, because it is our dutv to make our meaning plain, and to avoid giving rise to complaints that owing to the want of definiteness in our legislation, the public are put to considerable expense in bringing actions at law.

Mr. GLYNN(Angas). - I should like to say a few words in reference to the remarks of the Attorney-General. He has argued that we should leave the Constitution to operate to the fullest extent of the powers given to us under it, and that if we adopted a definition, those powers might be limited. That argument would also apply to the .definition adopted in the English legislation. The Constitution Act is an Imperial Statute, and the words " trade marks " contained therein will be interpreted according to the signification attached to them in England at the time the Act was passed. In 1901, when the Constitution Act came into force, we had various States laws, all based upon English common law, with statutory modifications ; and if I remember aright, the New South Wales Act would exclude union labels, because trade marks could not be registered by any class, but must be registered by a " person," which would include a company. Surely we ought to define what we mean, and not perpetuate the state of ambiguity which existed prior to the passing of the Trade Marks Act in England in 1905. It was in order to get rid of these ambiguities, and the somewhat conflicting decisions, that that Act was passed, and we should commit a great mistake if we failed to accept a definition which is a digest of the best of the English decisions. The draftsman .of the Bill before us may have omitted a definition of " trade mark," because the Bill was first drafted in 1903, up to which time there was no English Registration Act that contained a definition of "trade mark." We should certainly take advantage of the very deliberate judgment of experts as to what is a trade mark. If we include the proposed definition, the Bill will embrace everything covered by the English definition, and if union labels come within the scope of that definition, they will be trade marks. If union labels can be registered as trade marks by virtue of proprietorship, which mav exist in regard to certain classes of goods, we shall not require express clauses to bring them within the provisions of this Bill ; because, if they are true trade marks, they will come within the scope of the measure in any ease. If they are not true trade marks, we cannot include them within the scope of the measure by means of the provisions in Part VII. Apparently the object of these provisions is to give a bias by legislation to the definition of trade marks, and to express our opinion that when the Constitution Act came into force, the definition of trade marks covered union labels. My contention is that if under the law of 1901, union labels were not trade marks, our legislation cannot make them such. Not one clause in the 'Bill would legalize the use of union labels, unless they were true trade marks. I would remind the Committee that when I asked the Attorney-General whether this definiton was perfectly consistent with the union label clauses he hesitated to say that it was. My original point was that it would be inconsistent with those provisions. I am aware that in England very conflicting decisions have been given as to what is the real meaning of " proprietorship " and "ownership " in goods. But that some provision is necessary is as clear as daylight. That is evidenced by the fact that clause 22a, as framed by the Attorney-General, is practically a copy of section 62 of the Imperial Act of 1905, which was introduced to meet the case of an expert who had been held to have no right of proprietorship in the case of certain goods. Owing to a doubt having arisen as to whether an expert who examined goods and certified as to their origin, mode of manufacture, and so forth - that is to say, whether they were hand-made or machine-made - had a right to a trade mark in respect of those goods, the law was declared in section 62 of the Imperial Act of 1905.

Mr Henry Willis - Was it held that he had a right to a trade mark?

Mr GLYNN - Under some decisions, it was.

Mr Isaacs - To what is the honorable and learned member referring?

Mr GLYNN - To the "mark" of an expert examiner of goods. A declaratory section was introduced into the English Act, providing that an expert's relationship to such goods justifies the use of a trade mark.

Mr Henry Willis - Is not the honorable and learned member's amendment inconsistent with the trade mark proposals?

Mr GLYNN - I think it is inconsistent with the union label provisions of the Bill, but it is perfectly consistent with trade marks minus those conditions, Kerly says -

In some cases it is difficult to decide what the precise meaning of a trade mark is ; for instance, where A has selected and imported goods made by B for many years, and has sold them under a particular trade mark. If A has been the sole importer, does the reputation of the mark refer to his selection and importation, or to B's manufacture? Such a question arose in Hirsch v. Jonas. There the plaintiff bought cigars of a foreign maker, who, at his request, placed a label bearing the words GloriadeInglaterra Havannah, which had been designed and registered as his copyright by the plaintiff, upon the boxes. Subsequently the maker began to supply to the defendants for sale in the market similar cigars, not purchased by the plaintiff, but bearing the same label, and this the plaintiff unsuccessfully sought to restrain. The name of the plaintiff did not appear on the boxes, but that of the maker did. " The trade mark of manufactured goods," said Jessel, M.R., "means, X suppose, that the goods are manufactured by the person whose trade mark it purports to be. I can understand a man saying, 'I am not the actual manufacturer of goods, but the selector of goods, and my reputation for cleverness and selection is so great, that goods marked with a mark to show that they have been selected and approved of by me will fetch a higher price in the market.' "

The point at issue was : ' 1 Was such a man, seeing that he had not a direct ownership in the goods, entitled to register his mark under the Imperial Trade Marks Acts of 1883 and 1888 " ? It was held that he was entitled to register. But to set the matter beyond all doubt a section was introduced which, the honorable and learned member for Northern Melbourne says, covers the question of the union label.

Mr Isaacs - What he said was that it covered the principle.

Mr GLYNN - Probably. I have heard that even members of the Ministry held that the principle of the union label clauses is affirmed by section 62 of the Imperial Act, I say that that provision has nothing to do with that principle. If there were any doubt upon the point, why was it embodied in a separate part of the Act? The English provision is practically identical with clause 22 of this Bill. The object of section 62 of the Imperial Act was to cover the case thus put by Sebastian, third edition, page s :-

Again, a trade mark may be so composed as to indicate that the goods have been examined "and selected by a person of known ability, so that they have attributed to them such value as his approval can give, and his reputation depends on their corresponding to their alleged quality.

That covers exactly the case which section 62 of the English Act is designed to meet. I contend that this definition is inconsistent with the union label clauses of this Bill. But, apart from that consideration, it is a definition which ought to be inserted. It declares, exactly what we mean by a trade mark, and its insertion will save an immense amount of litigation. The Attorney-General says that we must not attempt to cure defects of the law arising from ambiguity for fear that we may exceed' our legislative powers as defined by the Constitution. I contend

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