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Tuesday, 28 November 1905

Mr ISAACS (Indi) (Attorney-General) . - I should like to put a supposititious case to the Committee. Let us suppose that A has registered a star as a trade mark for particular goods in one State, and that B has an identical mark registered in another State, in respect of the same goods. If those men were both trading in the other States of the Commonwealth, I do not think that either would have an exclusive right to the use of that mark.

Mr McCay - Probably because of common use. '

Mr ISAACS - Quite so. If one of them had the exclusive use of the mark, in all probability he would have registered.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - What does the honorable and learned gentleman mean by common use?

Mr ISAACS - That neither could stop the other from using the mark. Subclause s, as we propose to amend it, will provide for cases of that kind. Let us suppose that one man in New South Wales and another in Victoria had registered a star as a trade mark, and that both were trading over the rest of the Commonwealth. In that case, neither could oust the other, so far as the use of that mark was concerned from the other States, because its use would be common to both. But if one of them were trading alone in the other States, he would be the person who could secure registration.

Mr McCay - Supposing that he had not registered ?

Mr ISAACS - I think the chances are that he would have registered. If he had not, I suppose that the man who had got the user there would be the one.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - He would be registered after a given time had elapsed ?

Mr ISAACS - Yes. I think that is the way in which the matter would work out. I have made a note of the honorable member's suggestion, and shall have no objection to recommit the clause, if necessary. I think, so far as I can judge, that we have adopted the best way of dealing with the matter, but if a better way can be suggested, I shall be glad to recommit the clause.

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