§ 12.51 p.m.
§ Captain WallaceI beg to move, in page 4, line 2, to leave out "have been originally invalid, or to."
I apologise for the number of Amendments we have had to put down. I hope the House will take it as evidence of the care that the Solicitor-General has taken to get the Bill exactly right. We are most grateful to Members in all parts of the House for the assistance that they have given in the matter. The Clause deals with cases in which a word trade mark becomes the name or description of the article in relation to which it is used. It protects the trade mark from being invalidated by the mere fact that the word has become a general description of the goods, on the very just and equitable ground that it frequently is not the fault of the proprietor of the mark. There are two cases in which this protection is not given. The first is the case where there is a well-known and long-established use of the word as a description of the article by some other person who does not own the mark and who is a trader in the goods. The other case which is excluded is that of an article formerly manufactured under a patent where a period of two years has elapsed since the cesser of the patent, and the word is still the only practicable name for the article.
The Clause as drafted, and as considered in Committee, was wide enough to cover, first, the case where the mark has become the descriptive name before the date of its registration and the case where it became the descriptive name generally used by the public after it had been registered. In reply to criticisms in the Committee the Solicitor-General gave a promise to reconsider the Clause, and all 2359 these Amendments are designed to limit it to the cases in which the word became the descriptive name after the trade mark had been registered. This will leave cases in which the word may be alleged to be already descriptive at the date of the application to he dealt with under the ordinary rules for testing the suitability of a mark of registration. In these circumstances the reference to Section 41 of the principal Act is no longer necessary, because that Section deals with the validity of the original registration of the trade mark, and the amended Clause is now confined to matters arising after registration. I hope with that explanation it will be possible to regard all these Amendments as drafting.
§ 12.54 p.m.
Mr. AlexanderWe all, including my right hon. Friend the Member for Gorton (Mr. Benn), appreciate the care with which the Solicitor-General has treated the Bill. I am sure, whatever standing we may have on this side as contributories to its drafting, the right hon. Gentleman will sympathise with us in trying to follow the large number of detailed Amendments that have been put down to the Clause. Up to the present I am not convinced that the Government have really met the substantial part of my argument in Committee by this series of Amendments. The Parliamentary Secretary makes it clear to me from one part of his remarks that, in the case of articles in respect of which the trade mark has become the common name for the substance after the date of registration, he is not meeting me at all. That is to say, in the case of such articles that are to be given these special and new protections in the Bill. We had quite a long Debate on this matter upstairs, and I do not wish to keep the Members of the House in full session for any length of time upon it. But when you deal with such articles as Aspirin or Aspro, which are just names given to a perfectly common and generally used mixture of salts to deal with common ailments, such as headaches and complaints of that kind, it seems ridiculous to give this protection to what is not a specially devised article to which you attach a trade mark, but merely a much advertised name for the packing of it. I suggest that the Clause puts into the trade marks legislation of this country a point 2360 which it was never intended such legislation should cover, and that is, that there should be a protection in law for the goodwill established by much advertising, very often very misleading to the public, in order to keep up the price of well-known and perfectly common remedies for the people.
If you get a much advertised name like Aspirin or Aspro, a very substantial price is charged for the article, and yet there are people, some of whom I am not unconnected with, who can put up exactly the mineral and other substance to do the same work, and do it, perhaps, for half or one-third of the cost. Yet, if somebody comes to you and you say, "This is the same as Aspirin or a substitute for Aspirin or Aspro, which does the same work," then in certain circumstances—but not in quite such a wide way as in the original Bill, I agree—you will be committing an offence. I am very doubtful whether the Parliamentary Secretary in his Amendments is meeting what is a point of great substance in this matter, and I feel that it is a very doubtful use of trade marks legislation to bring in special protection for goods due entirely to large advertising, and especially not in the case of the substance I have mentioned, but certainly in the case of certain common patent medicines advertised at much expense in the Sunday papers and leading undoubtedly to the exploitation of people along the lines mentioned quite recently by Lord Horder at one of the great health conferences, in which he said that by this kind of process you could persuade people to believe in anything, take anything or eat anything. So far as reasonable provision is available for the protection of the public, I should like to see it maintained. I am not satisfied, however, that we have been fully met on this point, and before we proceed I do not think it will be right to ask the House to deal with these ten Amendments as a whole, without some further information from the Government.
§ 12.59 p.m.
§ The Solicitor-GeneralI accede at once to the request of the right hon. Gentleman to do the best I can to explain the extent to which we have tried to meet him. I sympathise with him when he sees the number of Amendments on the Paper which would require the exercise of much 2361 patience if, for instance, one were to write in the Bill in red ink exactly what they mean, but he can take my assurance that the Amendment of substance is the first one, and that the other Amendments are consequential and carry out the intention of the first Amendment. That intention was a matter that was raised by an hon. Gentleman from the other side in the Standing Committee, and it was—I think I can explain it shortly in this way. Under the present law the more successful you are in making known your trade mark, the more you run the risk of losing the value of that trade mark. The instance I gave upstairs was Kodak. If Kodak became synonymous to camera, then Kodak would cease to be a trade mark and anyone could sell his camera under the name of Kodak. Perhaps it would bring it home a little more if I imagined that the right hon. Gentleman or those with whom he is associated had invented the name "C.W.S." to be attached to goods, and had registered it as a trade mark.
§ The Solicitor-GeneralSupposing he did so there is nothing whatever in this Bill to prevent anybody else from making that commodity, all that the Bill says is that you may not take that word which has been used as a trade mark by the right hon. Gentleman, and attach it to the goods of somebody else. The example that he gave of Aspirin is, I imagine—I do not know, but I believe it to be—a good example of the evil at which the Clause aims. Somebody invented Aspirin.
§ The Solicitor-GeneralThen I am wrong. I do not know whether Aspirin is a trade mark or not.
Mr. AlexanderI beg the hon. and learned Gentleman's pardon. I thought he said that somebody invented the substance.
§ The Solicitor-GeneralI do not mean the substance, but that somebody discovered that acetyl-salicylic acid was a specific for headaches and attached to it the trade mark "Aspirin". Aspirin was so well advertised and so well-known that everybody who wanted acetyl-salicylic acid asked for aspirins. The moment that occurred the value of the trade mark disappeared and anyone could sell under the invented name. That is the situation which the Committee recommended to be dealt with, because it was considered to be unfair to people who spent a great deal of money, and, perhaps, carried out a great deal of research in securing that their product should be pure and carefully got up, to find that the trade mark, through their very success, had become public property. What was suggested in Committee by an hon. Gentleman on the other side of the House was that, as the Clause stood, it would apply to cases where a general name was used by somebody and attached to the goods. The case was given of brown bread. What was said was, why should anybody be enabled to adopt "brown bread" because they had registered that as a trade mark?
It is in order to meet that kind of case that these Amendments have been framed to bring in a time factor and give protection only in cases where the trade mark has come first and the generic use of the trade mark has come afterwards. Of one thing I am perfectly certain. The right hon. Gentleman can see that the Amendments are improvements. I recognise the point of principle that he does not like the protection that the Government desire as a matter of policy to accord to trade marks, but at any rate, he cannot, I think, object to the Amendments, because they improve the Clause in the sense that I have explained.
§ Question put, "That the words proposed to be left out, stand part of the Bill."
§ The House divided; Ayes, 54; Noes, 98.
2363| Division No. 257.] | AYES. | [1.6 p.m. |
| Acland, R. T. D. (Barnstaple) | Brown, C. (Mansfield) | Edwards, Sir C. (Bedwellty) |
| Adamson, W. M. | Charleton, H. C. | Frankel, D. |
| Alexander, Rt. Hon. A. V. (H'lsbr.) | Chater, D. | Gallacher, W. |
| Ammon, C. G. | Cluse, W. S. | Gardner, B. W. |
| Attlee, Rt. Hon. C. R. | Cove, W. G. | George, Rt. Hon. D. Lloyd (Carn'v'n) |
| Barnes, A. J. | Daggar, G. | George, Major G. Lloyd (Pembroke) |
| Bellenger, F. J. | Davies, S. O. (Merthyr) | Greenwood, Rt. Hon. A. |
| Benn, Rt. Hon. W. W. | Ede, J. C. | Griffiths, J. (Llanelly) |
| Groves, T. E. | McEntee, V. La T. | Sorensen, R. W. |
| Hall, G. H. (Aberdare) | MacLaren, A. | Strauss, G. R. (Lambeth, N.) |
| Hall, J. H. (Whitechapel) | Morrison, R. C. (Tottenham, N.) | Taylor, R. J. (Morpeth) |
| Henderson, A. (Kingswinford) | Naylor, T. E. | Thorne, W. |
| Henderson, T. (Tradeston) | Pethick-Lawrence, Rt. Hon. F. W. | Thurtle, E. |
| Jenkins, A. (Pontypool) | Ritson, J. | Watkins, F. C. |
| Johnston, Rt. Hon. T. | Robinson, W. A. (St. Helens) | Whitelay, W. (Blaydon) |
| Jones, Morgan (Caerphilly) | Rowson, G. | Windsor, W. (Hull, C.) |
| Kennedy, Rt. Hon. T. | Seely, Sir H. M. | |
| Kirkwood, D. | Smith, Ben (Rotherhithe) | TELLERS FOR THE AYES.— |
| Leslie, J. R. | Smith, E. (Stoke) | Mr. Mathers and Mr. John. |
| NOES. | ||
| Albery, Sir Irving | Guy, J. C. M. | Remer, J. R. |
| Anstruther-Gray, W. J. | Hannah, I. C. | Rickards, G. W. (Skipton) |
| Beaumont, Hon, R. E. B. (Portsm'h) | Hannon, Sir P. J. H. | Rosbotham, Sir T. |
| Bernays, R. H. | Hepburn, P. G. T. Buchan- | Ross Taylor, W. (Woodbridge) |
| Boulton, W. W. | Hills, Major Rt. Hon. J. W. (Ripon) | Samuel, M. R. A. |
| Briscoe, Capt. R. G. | Hope, Captain Hon. A. O. J. | Savory, Sir Servington |
| Brocklebank, Sir Edmund | Hume, Sir G. H. | Shaw, Major P. S. (Wavertree) |
| Brown, Brig.-Gen. H. C. (Newbury) | Kerr, J. Graham (Scottish Univs.) | Somervell, Sir D. B. (Crewe) |
| Bull, B. B. | Lamb, Sir J. Q. | Somerville, A. A. (Windsor) |
| Campbell, Sir E. T. | Liddall, W. S. | Southby, Commander Sir A. R. J. |
| Cary, R. A. | Little, Sir E. Graham- | Strauss, H. G. (Norwich) |
| Channon, H. | Loftus, P. C. | Strickland, Captain W. F. |
| Clarke, Lt.-Col. R. S. (E. Grinstead) | MacAndrew, Colonel Sir C. G. | Stuart, Hon. J. (Moray and Nairn) |
| Colville, Lt.-Col. Rt. Hon. D. J. | Macquisten, F. A. | Sueter, Rear-Admiral Sir M. F. |
| Cooke, J, D. (Hammersmith, S.) | Maitland, A. | Tasker, Sir R. I. |
| Crooke, J. S. | Makins, Brig.-Gen. E. | Tree, A. R. L. F. |
| Cross, R. H. | Margesson, Capt. Rt. Hon. H. D. R. | Tufnell, Lieut.-Commander R. L. |
| Conant, Captain R. J E. | Mayhew, Lt.-Col. J. | Wallace, Capt. Rt. Hon. Euan |
| Davies, Major Sir G. F, (Yeovil) | Mellor, Sir J. S. P. (Tamworth) | Ward, Lieut.-Col. Sir A. L. (Hull) |
| Denville, Alfred | Mills, Sir F. (Leyton, E.) | Ward, Irene M. B. (Wailsend) |
| Dower, Major A. V. G. | Moore, Lieut.-Col. Sir T. C. R. | Waterhouse, Captain C. |
| Duckworth, W. R, (Moss Side) | Morrison, G. A. (Scottish Univ's.) | Williams, H. G. (Croydon, S.) |
| Emmott, C. E. G. C. | Morrison, Rt. Hon. W. S. (Cirencester) | Wilson, Lt.-Col. Sir A. T. (Hitchin) |
| Evans, E. (Univ. of Wales) | Neven-Spence, Major B. H. H. | Windsor-Clive, Lieut.-Colonel G. |
| Everard, W. L. | Nicholson, G. (Farnham) | Winterton, Rt. Hon. Earl |
| Fildes, Sir H. | Nicolson, Hon. H. G. | Withers, Sir J. J. |
| Gluckstein, L. H. | O'Connor, Sir Terence J. | Womersley, Sir W. J. |
| Goldie, N. B. | Ormsby-Gore, Rt. Hon. W. G. A. | Wood, Rt. Hon. Sir Kingsley |
| Graham, Captain A. C. (Wirral) | Orr-Ewing, I. L. | Wright, Squadron-Leader J. A. C. |
| Grant-Ferris, R. | Palmer, G. E. H. | Young, A. S. L. (Partick) |
| Grattan-Doyle, Sir N. | Ponsonby, Col. C. E. | |
| Gridley, Sir A. B. | Raikes, H. V. A. M. | TELLERS FOR THE NOES.— |
| Grimston, R. V. | Ramsay, Captain A. H. M. | Captain Dugdale and Mr. Munro. |
| Gunston, Capt. D. W. | Reid, Sir D. D. (Down) |
§ Further Amendments made:
§ In page 4, line 3, after "use," insert "after the date of the registration."
§ In line 6, leave out "but," and insert "Provided that."
§ In line 7, leave out "had been before the date of the registration, or has been, as the case may be," and insert "is."
§ In line 16, leave out "and that such use continues."
§ Leave out line 23.
§ In line 24, leave out "as the case may be."
§ In line 31, leave out "notwithstanding anything in section forty-one of the principal Act."
§ In line 39, leave out "an entry made in the register without sufficient cause or."
§ In line 41, leave out "as the case may be."——[Captain Wallace.]