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Thursday, 30 November 1905

Mr JOHNSON (Lang) - Before continuing my speech I should like to appeal to the Government to permit those who are in attendance upon honorable members to secure some rest, even though we should ourselves be compelled by tyrannical action on the part of the Government to remain here. When speaking before, I regarded a remark made by the VicePresident of the Executive Council as a promise that we should adjourn at about 11 o'clock, but had I known that there would be an all-night sitting, I should not have condensed my. remarks as I did. I was dealing with some decisions given in American Courts bearing on the union label. I showed that this legislation in America had led to such abuses that frequent appeals had to be made to the Courts for protection against the tyranny, coercion and intimidation of the boycott,, which had assumed such alarming proportions in the United States as to institute virtually a reign of terror in that country. I quoted American judgments to show that these boycotte were considered illegal, and that the union label was illegal.

Mr Isaacs - All the cases quoted by the honorable member were cases against rascals and counterfeiters.

Mr JOHNSON - The decisions showed that the Courts did not hold the union label to be a legal instrument.

Mr Isaacs - Not until the Act was passed to put down rascality.

Mr JOHNSON - The honorable and' learned gentleman, is aware that the legalization of the union label is not. universal in the United States even now. I quoted the decisions in some cases, and I now propose to quote others.

The following dicta from American Judges will be read with interest: -

Mr Isaacs - What is the reference?

Mr JOHNSON - I need not give the honorable and learned gentleman the reference. I shall quote the cases, and he will then be able to look them up for himself.

Mr Isaacs - The honorable member is ashamed of his authority.

Mr JOHNSON - If the AttorneyGeneral desires a reference to opinions on the union label, I can refer him to a lead ing article which appeared in the Age of the 17th of this month. I find that in the case of the Cigar-makers' Protective Union v. Canham, in 1889, Judge Gilfillan, of Minnesota said -

The device is wanting in the essential characterization of the legal trade mark.

1.   It is not adopted nor used to indicate by what person the articles were made, but simply to indicate membership of a certain association.

2.   Its use is not enjoyed as an incident of any business, and the right to use it cannot be transferred even with the transfer of the business in which it may be employed. The right to use it can be transferred only by becoming a member of one of the unions or employing those who are members, and lost only by ceasing to be a member or to employ members.

3.   There is no exclusiveness in the use or right to use what is a necessary thing in a legal trade mark.

All these authorities, so far as I am able to discover, are in absolute agreement that a union label and a trade mark are two entirely distinct things, and that one cannot take the place of the other. A union label is merely a mark to indicate the goods made by the members of a certain union, and has absolutely no commercial value, such as is inherent "in a trade mark. In the case, Carson v. Wry, in 1889, Justice Thayer, of the Federal Judiciary, said -

The union label does not answer to the definition ordinarily given of a technical trade mark The Court may not interfere in this instance as in ordinary trade mark cases.

Here, again, we have an absolute distinct tion made, and the right to interfere in the case of a trade mark is recognised. The protection of the Court could not be extended in the case of a union label, which signifies merely membership of an association. In the case Werner v. Brayton, in 1890, Judge Devens, of Massachusetts, said -

We are of opinion that the label alleged by the Bill in the case at bar to have been counterfeited cannot be treated as a trade mark...... It wants every essential element of such a mark.

Mr Isaacs - They are all counterfeit cases.

Mr JOHNSON - I think not. I think that the case, Carson v. Wry, was not a counterfeit case, and in that case the Judge made a clear distinction between a union label and a trade mark.

Mr Isaacs - That case is wrongly named. It was the case of Carson v. Ury. It was in the Federal Court, and the Judge restrained the counterfeiter because the plaintiff was a manufacturer, and not a union, and the Judge drew that distinction.

Mr JOHNSON - He said-

The union label does not answer to the definition ordinarily given of 1 technical trade mark.

Mr Isaacs - I know the case. It is 39 of the Federal Reports. The Federal Judge did restrain in that case, because the plaintiff was a manufacturer, and not a union.

Mr JOHNSON - Then how does the honorable and learned gentleman account for the Judge saying this -

The Court may not interfere in this instance as in ordinary trade mark cases.

Mr Isaacs - That quotation is a patchwork quotation. If the full report of the case is looked at it will be found that the Judge decided that he could on equitable grounds do it, and he did. I can assure the honorable member that these quotations, from whatever source they come, are garbled. I do not say that the words are not correctly set down, but if the honorable member read the cases throughout he would form a different idea of the decisions from that which he has gained from these garbled reports.

Mr JOHNSON -Even admitting that it may be a garbled account of the judgment, the Attorney-General admits that the words are correct. Here is a sentence which contains a complete statement -

The Court may not interfere in this instance as in an ordinary trade mark case.

By that observation, it seems to me the Judge laid down a very definite distinction between a union label and a trade mark in the ordinary acceptation of the term.

Mr Isaacs - That is in the absence of a measure like that which we are considering, and that makes all the difference.

Mr JOHNSON - I do not know whether the Attorney-General has read an opinion which was given to a certain association Here, by learned counsel, who, if

I remember aright, lays it down that the union label cannot be legalized, and calls' in question the legality of this legislation.

Mr Isaacs - The honorable member is getting his information from the same source, and it is right, so far as it goes ; but they have carefully omitted that the learned counsel said that it is a matter of extreme difficulty.

Mr JOHNSON - I shall quote from the opinion directly. I repeat that in the United States the judicial authorities seem to recognise a distinction in character between a union label and a trade mark.

Mr Isaacs - Only in the absence of legislation.

Mr JOHNSON - I do not see how even legislation can change the essential character of the union label. From House

Documents,volume 88, for the session of 1 900- 1, I propose toquote a section from the labour laws of California. It appears on page 1005, under the head of " Trade Marks, &c, of Trade Unions," and reads as follows: -

Any person engaged in the production, manufacture, or sale of any article of merchandise made in whole or in part in this State, who, by any imprint, label, trade mark, tag, stamp, or other inscription or device, placed or impressed upon such article or upon the cask, box, case,or package containing the same, misrepresents or falsely states the kind, character, or nature of the labour employed or used, or the extent of the labour employed or used, or the number or kind of persons exclusively employed or used, or that a particular or distinctive class or character of labourers was wholly and exclusively used or employed when in fact another class or character or distinction of labourers was used or employed either jointly or in any wise supplementary to such exclusive class, character, or distinction of labourers, in the production or manufacture of the article to which such imprint, label, trade mark, tag, stamp, or other inscription or device is affixed, or upon the cask, box, case, or package containing the same, is guilty of a misdemeanour, and punishable by a fine of not less than Fifty nor more than Five hundred dollars, or by imprisonment in the county gaol for not less than twenty nor more than nfnety days, or both.

This legislation was approved on the 16th March,1901.It will be seen that although it is headed " Trade Marks, &c, of Trades Unions," it deals not with union labels, but with any person engaged in the production, manufacture, or sale of any article of merchandise.

Mr Isaacs - If the honorable member will refer to House Documents, volume 105, for the session 1903-4, he will find, at page 130, this section under the head of "Trade Marks of Trade Unions, &c." : -

Any trade union, labour association, or labour organization, organized and existing in this State, whether incorporated or not, may adopt and use a trade mark and affix thesame to any goods made, produced, or manufactured by the members of such trade union, labour association, or labour organization, or to the box, cask, case, or package containing such goods, and may record such trade mark by filing or causing to be filed with the Secretary of State its claim to the same, and a copy or description of such trade mark with the affidavit of the president of such trade union, labour association, or labour organization, certified to by any officer authorized to take acknowledgments of conveyances setting forth that the trade union, labour association, or labour organization of which he is the president is the exclusive owner, or agent of the owner, of such trade mark.

Mr JOHNSON - The honorable and learned gentleman has a later volume than the one in my hand. Even if it is referred to as a trade mark, the union label cannot be dealt with or treated as a trade mark in the same way as an ordinary merchandise trade mark is treated. What gives value to a trade mark is the fact that there is ownership, and the right to dispose of the article to which it is applied. But that right does not extend to a union of employes who are simply engaged in the production of the article, and have no proprietary rights therein. Although a manufacturer puts the union label on the article, it does not as a commercial asset have any value. On the contrary, it has the effect of depreciating the value of a trade mark. In one case, although the cigar manufacturers were willing to, and did employ, all union labour in the production of their cigars, still they did not wish to use the union label, because they found that if depreciated the value of their trade mark, and' their goods. The honorable member for Bland has frequently suggested by interjection that the union label is required for the purpose of putting a stop to the depredations of pirates or piracy ; that the work of the trades unionists in Australia was being continually pirated. But when honorable members on the other side are asked to state any case of piracy they are silent. I do not believe that there is any piracy of that kind going on here. Nor do I think that there is any possibility of its taking place.

Mr Cameron - I think we shouldhave a quorum. [Quorum formed.]

Mr JOHNSON - Recentiy the deputy leader of the Labour Party paid a. visit to my electorate, and in the course of a speech he justified this legislation on the score that it was needed to secure for the people pure food and sound clothing. One of my constituents informed me that after listening to the speech he thought that the union label must be all right, because he had been told that it was intended to protect the people against being supplied with improper food and clothing. There is no provision in this Bill to warrant such a statement being made.

Mr Fisher - Will the honorable member read the quotation on which he founds his statement?

Mr JOHNSON - I am basing my remarks upon a report which appeared in the Sydney Daily Telegraph, and which is not available just at the moment. The Bill does not pretend to secure to the people pure food or sound clothing. As a matter of fact, the worst possible food and clothing may bear the union label. For instance, boots have been manufactured in Melbourne with leather, which chemical analysis has shown to be loaded with a poisonous substance.

Mr Isaacs - I think that they were imported boots.

Mr JOHNSON - The barium was found, not in imported boots, but in locally made leather. If the union label is intended to insure that the people shall get sound goods, I submit that it will not attain that end. It will be utterly powerless to protect the public against cases of imposition, and when honorable members say that it will, they are only misleading their constituents. Speaking on Saturday night at Hurstville, the honorable member for Wide Bay is reported to have said -

There had been a struggle in the Federal Parliament as to whether manufacturers should be allowed to falsely state that their goods were made under union conditions. The union label was to be used solely and wholly to show the purchaser whetherhe goods were made under proper conditions or not, and thus allow him or her to decide whether to purchase the articles. It was true, and he did not wish to deny it-

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