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Tuesday, 28 November 1905

Mr McCAY (Corinella) - Does the AttorneyGeneral think that this clause is necesssary ? It seems to me that it introduces unnecessary complications. First of all, is there anything to prevent an unregistered proprietor of a trade mark in any State from applying, for registration under the Bill without the authority which' is conferred bv this clause? I presume that the opponent could not set up the applicant's own user against him.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - What does the honorable and learned member mean?

Mr McCAY - If I were using a trade mark in a State, but had not registered it, I could apply to register it without statutory authority-

Mr Isaacs - The honorable and learned member will see that under this Bill he would have to comply with certain conditions.

Mr McCAY - I am coming to that. Let us assume that there is an unregistered proprietor in a State. There is nothing to prevent him applying to have his trade mark registered under the Bill, altogether apart from this clause. The fact that he was using that .trade mark himself would not be a disability on application.

Mr Isaacs - No.

Mr McCAY - Then sub-clause 3 provides that such a person can secure registration, although he does not comply with all the conditions that would be required of an applicant.. Let me state the case I wish to put : A is an unregistered proprietor of a trade mark in use, say, in Tasmania; and has never applied- to register it under the Tasmanian law, but because he has been using it in Tasmania, and his user there would protect him against any one else, another variety of trade mark is to be registered in spite of its non-compliance with the essential qualifications demanded by this Bill.

Mr Isaacs - Subject to limitations.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Is there a right of user in an unregistered mark?

Mr McCAY - Certainly. A man must not lead the public to believe, by the use of a mark, whether registered or 'unregistered, that his goods are those produced by some one else. But the point is that we are going to allow unregistered marks to be registered, although they do not comply with the provisions of this measure - we are going to allow them to be registered merely because they have been used. I suggest to the Attorney-General that those who have been content with their user and have not registered! should be allowed "to rely on their user. They should not be permitted to register under this Bill a mark which, but for their user, thev would not be allowed to register. Let them register - now, if they wish to, but hereafter let the Commonwealth law .apply, so far as any unregistered mark is concerned. I fail to

Mr Glynn - It is proposed to save the right of registration which he would have had under the States law.

Mr McCAY - I doubt whether his right to register ought to be saved. It is all very well to give every protection to registered marks, and to provide for transfer from the State register to the Federal register with such limitations as may be necessary. But why should the Federal register be loaded up with marks which, "from the point of view of the Federal law, do not contain the necessary essentials? I do not propose to move an amendment, but point out that in sub-clause 4 we have limitations as to mode, place, or period of uSer. Why, I do not know, seeing that the question of a mark being in use in other States does not arise under that provision.

Mr Isaacs - Some one else might be the proprietor of a mark which was unregistered, and be using it in other States.

Mr McCAY - Then registration under this Bill would not oust the other proprietor.

Mr Isaacs - Unless the limitation be given.

Mr McCAY - We might provide that where a trade mark is registered, it shall not confer exclusive rights as against the unregistered proprietor, but my point is that it is unnecessary to cumber the register with another variety of mark, instead of endeavouring to secure uniformity. It seems to me that it is proposed to give to the unregistered proprietor more consideration than he is entitled! to receive. As long as- he is protected by his user in his own State, that is all that he should expect. If he wishes to register under this law he ought to so adapt his trade mark as to make it registrable.

Amendment agreed to. '

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