§ Order for Second Reading read.
§ Motion made, and Question proposed,"That the Bill be now read a second time."
MR. T. M. HEALT (Longford, N.)
What explanation are we to have of this Bill?
§ (12.27.) MR. HOWARD VINCENT (Sheffield, Central)
This is a simple amendment of a sub-clause in the Merchandise Marts Act, 1887. Last year evidence was given before the Select Committee showing that two inconsistent facts have to concur to constitute the offence of blind marking, and the enactment is thus rendered nugatory. The evidence of the Cutlers' Company before the Select Committee showed that the Sub-sections B and C of Subsection 3 of Section 3 are utterly inconsistent, and the Bill simply proposes that the superfluous Sub-section B shall be omitted, in order that the law may be enforced. I hope that the House will not object to the Second Beading, on the ground so fully stated in the Memorandum that I need not further detain the House at this late hour.
§ (12.29.) THE ATTORNEY GENERAL (Sir R. WEBSTER,) Isle of Wight
I think that the matter required more consideration than has been given it in the hon. Member's speech. The question is whether the Sub-section really requires any Amendment. It appears to me that the Sub-sections which are said to be inconsistent may in certain cases have to stand together, and I think some explanation is necessary. I should like to explain in a few words what would be the effect of their standing together. I join issue with my hon. and gallant Friend as to what would be the state of things if they were read separately. Sub-section 3 requires, that in order for it to be an offence, the false or improper naming shall be identical with or a colourable imitation of the name of some other person carrying on a similar business. Take the case of a well known firm, such as Parkins and Gotto, one condition of an offence would be that that name should be taken fictitiously, or used by some persons not bonâ fide carrying on business in the class of goods dealt in by Parkins and 894 Gotto; and the two conditions must coexist together. It is not intended to prevent a man from trading in his own name, and also in an assumed name so long as he does not thereby do injury to another person. It is a matter for grave consideration, whether or not the two conditions ought not to exist together, namely, imitation of a rival trader and no justification for the use of the name in your own business. There are names used which are fictitious, but well-known in trade such as"Waukenphast," which everybody know is not a man's name, but merely a corruption of"Walking fast." It would be ridiculous to propose to stop the use of that name because it is fictitious, when its use is doing no harm to anyone. I do not wish to express a final opinion on the hon. and gallant Member's proposal. It is rather a question for hon. Members who are acquainted with trading matters, and I do not pretend to indicate to them what should be the decision of the House on the subject. I did think, however, it might be of service to the House to point out what is the effect of the conditions if they are read together, and what will be the effect of the change proposed by the hon. and gallant Gentleman.
§ (12.34) MR. HALDANE (Haddington)
I certainly agree with the view presented to the House by the Attorney General on the part of the Government. This Bill seems to me to be another of the series of attempts that have been made by traders from time to time to commit a robbery on the English language. They want to secure a monopoly in names for trading purposes. The attempt has been made over and over again in the Civil Courts, and it has failed as often as it has been made. The doctrine laid down by the Courts comes to this: that a person may trade in whatever name he pleases, so long as he does not infringe a trade mark or is not guilty of a fraud, and what the hon. and gallant Member wants to do is to secure to the traders rights that they have not got at present. He is trying to invoke the Criminal Law to do what he knows the Courts, in the exercise of their equitable jurisdiction, would never do. He wants to make it an offence to carry on business under a fictitious name, though that name is used bonâ fide as a kind of advertisement.
§ MR. HALDANE
What difference ought that to make? The question is, whether anyone has the right to appropriate and enjoy a monopoly in a part of the English language. Under the circumstances, the House ought to consider carefully before extending privileges which are not in the interest of the public, but of particular traders.
§ (12.37.) MR. HOWELL (Bethnal Green, N.E.)
I may say, in regard to this matter, that there does not appear to be present at this moment any Member of the Select Committee which sat upstairs to consider this subject. It seems to me that the object of the Bill is to satisfy the desires of someone in Sheffield, but the subject appears to me of such importance that, if dealt with at all, it should be by the Government. I beg, therefore, to move that the Bill be read a second time this day six months.
§ Amendment proposed, to leave out the word" now," and, at the end of the question, to add the words" upon this day six months."—(Mr. Howell.)
§ Question proposed," That the word ' now' stand part of the Question."
§ MR. CHANCE (Kilkenny, S.)
I would point out that if the Bill passed in its present form, it would be absolutely ineffective. As the law stands at present, the use of a fictitious name is only forbidden when a fraudulent purpose is manifest. If this Bill is carried the question of fraud disappears, and the use of a fictitious name is forbidden it it is not registered as a trade mark; but if it is so registered, it will be in order. All a person wishing to use a fictitious name will have to do will be to spend £2 in having that name registered.
§ (12.39.) MR. HOWARD VINCENT
The hon. Member for Bethnal Green (Mr. Howell) says this matter was considered by the Committee on the Merchandise Marks Act of 1887. A Select Committee, of which I was a member, sat last year to inquire into the operation of that Act since 1887, and the Master Cutler, of Sheffield, in giving evidence, said—I think the Merchandise Marks Act ought to prevent the use of fictitious names unless they are registered. We were under the impression that it would, but it does not do so.896 The Deputy Clerk of the Cutlers' Company, in his evidence, dealt strongly with the same point, and showed that the section, as it stands, does not facilitate the identification of fictitiously-marked goods. I would ask the Attorney General if it would not be possible to introduce some Amendment which would meet the cases he raised as to the legitimate use of a trading name.
(12.40.) SIR R.WEBSTER
The question put by the hon. and learned and gallant Gentleman seems to me simply to raise the whole principle involved.
§ MR. T. M. HEALY
We may take it now as a privilege clearly asserted and vindicated by the Attorney General that men may use names that are not their own.
§ (12.42.) The House divided:—Ayes. 16 Noes 89.—(Div. List, No. 140.)
§ Main Question, as amended, put and agreed to.
§ Second Reading put off for six months.