§ Order for Second Reading read.
§ 7.34 p.m.
§ The Parliamentary Secretary to the Board of Trade (Dr. Burgin)
I beg to move, "That the Bill be now read a Second time."
This is a Bill of 33 Clauses and three Schedules, which comes to the House of Commons from another 508 place. It seeks to introduce Amendments into the law relating to trade marks. The Bill deals with very technical subject matter, and I would ask the indulgence of the House if it becomes necessary in introducing the Bill for me occasionally to refer to matters which seem, on the wording of the Bill itself, somewhat abstruse. The conception of a trade mark, however, is understood by every Member of the House. A trade mark is a very valuable right in connection with business. Business methods vary from time to time and it is natural, 509 therefore, that the law relating to trade marks should come under review. The law relating to trade marks is already a considerable body of Statute and case law, and it is found expedient when any revision of that law is to be made that a Departmental Committee should be set up, and that the question should be referred to that committee, that evidence should be called, conclusions reached and a. report, with the evidence, published. That policy has been adopted in the present case and, generally speaking, the Bill which I am now commending to the House implements the report of the Departmental Committee.
Hon. Members who propose to follow the Bill carefully will find information in Command Paper 4568, which is the report of the Departmental Committee, and Command Paper 5328, which is the Paper showing how the provisions of the amending Bill affect the earlier Acts. Trade marks are intended to be of assistance to manufacturers and traders. Many a great business has been built up by the successful use of rights of a monopoly character which the trade mark law enables them to use. If by alteration of the methods of business or by alteration of the structure of the units in business the trade mark law is behind commercial practice, then the law relating, to trade marks instead of being of advantage and assistance to the mercantile community might be a hindrance. In one respect at least, as I shall show when: I come to the detailed Clauses of the Bill, the present law of England relating to trade marks imposes an unnecessary handicap on manufacturers and traders and calls out for alteration. I refer to the power of assigning a trade mark without the obligation of assigning the whole of the business. Because it has been discovered that the present trade mark law is a handicap and because it has been held to be necessary to amend 'its provisions, the House will find when we come to deal with them that that portion of the Bill is of a retrospective character, so that the assignment of trade marks, honestly made by traders in the belief that it was valid, but which may be invalidated by a decision of the courts, will be valid by the action of this House is passing this Bill into law.
I do not think it will be necessary for me to detain the House at any length in commending a Bill which is based on the 510 report of a Departmental Committee. My experience of the House is that where a Departmental Committee has looked into a subject well, where there has been a report published, with the evidence, and where the different views of witnesses have been canvassed and a decision reached, the House, broadly speaking, has been prepared to implement a substantial majority of the conclusions of such a report. I am in hopes that that will be found to be the decision to-night. Very considerable pressure has been brought upon the Board of Trade by the commercial community in favour of this Measure, and we now have an opportunity of conferring rights on the mercantile community for which they ask, which it is in our power to give them, and which will do something to restore the balance between British traders and the traders of some other countries.
Perhaps the House, after these opening observations, will allow me to go through the provisions of the Bill. The method by which the Bill is printed is to give to the House references to the main body of the existing law in marginal annotations to each Clause. I need not go through each Clause. The Bill contains a number of principles of varying degrees of importance relating to different parts of trade mark law, but it will be sufficient to commend the Bill to the House if I take the main provisions in which the law is altered and amended, and if I give to the House with regard to the remaining Clauses an assurance that there is a volume of Amendments such as we should expect when a great body of law is brought up to date and some years have elapsed since the last revision. I proceed, therefore, to look at some of the main Clauses in which there are alterations. Clause 1 redrafts the definition of trade mark law. There are one or two variations of importance which are introduced, and I would commend to the House, particularly those interested in the manufacturing side of business, the actual working of the new definition of trade mark. Clause 2 is unimportant for the main purpose of the introduction of the Bill in the manner I am presenting it. Clause 3 deals with registration under Part III of the Register and need not delay us at this stage.
Clause 4 is one of the main Clauses. This is the Clause which deals with words 511 used as the name or description of an article. A whole set of provisions which will be of assistance to the owners of well-known word trade marks is in Clause 4. These provisions relate to word trade marks which have become the name or description of the articles or substances in connection with which they are used. Under the existing law wherever a trade mark becomes in fact the name of the goods, in other words where the proprietor of the article has so far been successful in popularising a trade mark that the name itself is transferred to the goods, when he reaches the summit of his ambition and the goods become known by the trade mark, then the mark becomes destroyed as a trade mark. That is obviously a position which is out of date. The House will agree that there are a large number of instances which glare at us from the hoardings indicating the success of the policy which certain manufacturers and distributors of goods have adopted by making the article so well known that what originated as a trade mark has in fact become the name of the article or substance.
A great many people who travel on the continent know of certain standard articles of diet which are known only by their trade mark. Instances will occur to hon. Members at once where the very mention of the name is sufficient to bring forth not only the commodity that is desired, not only the type of that commodity but the particular brand, with the label on it, which has conveyed the name to the article itself. One instance—and I am only using it for the purpose of enlightenment—of a mark which has become the universal name of the commodity, is the word "gramophone," and another the word "linoleum," both of which have now passed away from the use of the trade mark in the early stages and become the name of the commodity itself. I do not propose to go through the literal provisions of Clause 4, because they can be dealt with when we come to the Committee stage. It is an out-of-date principle to suggest that if a trade mark succeeds completely it should cease to have validity. It should be the other way round. If it becomes so well known that it signifies the commodity itself then it should remain protected, and it will be 512 found that the Clause is sufficient for that purpose.
I have nothing particular to say about Clauses 5 and 6 except what can be dealt with on the Motion, "That the Clause stand part," in Committee. I come to the operative Clause of the Bill, Clause 7, which deals with the assignment and transfer of trade marks. This question has been discussed in this country and abroad for a great many years. Under our present law a registered trade mark can be assigned and transmitted only in connection with the goodwill of the business concerned in the goods for which it has been registered. So restricted have been case law decisions on that matter that it has been held that you can have no separation of the goodwill, that you can have no separation of ownership of a trade mark, even when you have big modern companies such as Imperial Chemical Industries and other large companies, and you have subsidiary companies and the convenience of having a separate limited liability company for dealing with one section of your business.
Imagine a case where a whole range of commodities is known by a particular mark, and where it is desired to deal with the manufacture in one part of that business separately from the manufacture in another part. Under present English law any attempt to make that mark correspond with the separation of the companies under the one management of the one parent company, would be to invalidate that mark. It is not possible under the English law, of trade marks as it stands, to have any division or separation of parts of the goodwill in connection with the goods to which the mark applies. You cannot. therefore, have a parent company and a subsidiary company, you cannot have manufacturer and distributor, you cannot have a buying company and a selling company, you cannot have a selling company and a retail company with separate rights in the commodity to which the trade mark applies, without jeopardising, if not invalidating, the trade mark itself.
On a strict interpretation of the English law to-day the only way in which the registered proprietor of a British trade mark can validly assign that trade mark is to divest himself of the whole of the goodwill in the goods to which the trade mark applies. That is far too restric- 513 tive. Our law is behind the law of other countries in that regard and many a British trading company is finding itself in the position of having unwittingly jeopardised the validity of important marks by following in the footsteps of American and Continental manufacturers who have subdivided their method of carrying on their business. That all came to the front in the case "In re John Sinclair, Limited." The Sinclair case is known to everybody who has investigated the question of trade marks as a hindrance, arising from the present doctrine of English law, to the development and extension of British manufacturing business. This Clause not only deals with the Sinclair case, but does so retrospectively so that assignments which have been made in the past and which would be invalidated by the Sinclair decision will be validated, once this Measure has been passed. Obviously, questions will arise in Committee on this Clause, and I shall expect hon. Members to submit instances for determination as to whether or not particular assignments would or would not be valid. But in moving the Second Reading, it is sufficient for me to say that this is a long overdue reform for which the commercial community are crying out, and the least justice we can do to them is to pass this Measure into law as rapidly as possible to give them the freedom which other countries possess in this respect. That is the keynote of this legislation.
Clause 7 may be described as the meat of the Bill, but we are still in the early stages as far as the details of this legislation are concerned. Clause 8 deals with the use by somebody else of an owner's trade mark. Hon. Members who have had experience of these matters know that you cannot, under existing law, license or lease a trade mark. The whole idea of a trade mark, broadly speaking, connotes manufacture by the proprietor of the mark and one of the things which you cannot do at present is to allow another trader to use your mark. There was a contradiction in terms between the registration of a mark which suggested that the registered proprietor manufactured it, and the use of that mark by somebody else. Clause 8 which is akin to Clause 7 (Assignment and transmission of trade marks) is concerned with the limits within which A can authorise B to use A's trade mark. This, again, is 514 an amendment of the law which has been long overdue. It is an enabling amendment of a beneficial character. It has been asked for by the commercial community and it clearly prevents fraud upon the public and allows considerable facility in business by enabling a registered proprietor to give to others the power of user.
In Clauses 9 to 12 there is nothing of special importance which need be brought to the notice of the House in a Second Reading speech, and I pass to Clause 13. We now come to consider what are called defensive trade marks. Hon. Members are probably aware that for trade mark purposes goods are divided into classes, and if you are a manufacturer of a particular commodity you register your trade mark in the class which is applicable to those goods. If you are a manufacturer of bicycles, you do not register your trade mark in the class that relates to boots and shoes. That is all very elementary, but modern business has reached such a pitch that you may find a word obtaining such wide usage that the public imagine that that word connotes manufacture by a particular firm. Take as an example the word "Bovril." That is a commodity manufactured by an eminent house and the name carries with it a certain guarantee to the public of method of manufacture and a certain appeal. As the law stands, the word "Bovril" can only be registered in that class of goods which is applicable to a beverage of that kind. There is nothing to prevent a house agent having a Bovril house or a boot and shoe firm from having Bovril boots and shoes. That might be damaging.
I can think of other examples which would come much nearer to damaging the registered proprietor but I take that one case. I suggest that the House will consider it wrong that we should restrict a registered trade mark merely to the class in which that mark is registered. I submit that power should be given to the owner of a business to register in other classes, as a defence against the use in connection with other classes of goods of the mark which he has popularised. The word "Bovril" for example, should not be capable of being taken by some less scrupulous trader for application to a commodity in some class in which the word "Bovril" is not 515 registered. I do not think the matter needs argument. I have ventured to deal with it in an elementary way—the House will excuse me for doing so—because I am anxious that the real importance of the matter should not be misunderstoood and it is expressed here in what are, necessarily, rather technical terms. I imagine that that Clause will need no further commendation.
There is nothing in Clause 14 on which I need detain the House, and I pass to Clause 15. The habit has grown up in certain quarters of using valuable trade marks in a way which does not commend itself to a large body of traders. Again, I give an example of the practice to which I refer. A particular brand of cigarettes is put on the market. The registered proprietor of the trade mark applicable to those cigarettes builds up a big proprietary business, establishes goodwill, makes the name of his cigarettes a household word and people buy their cigarettes by reference to that word. Along come other traders to say, "Here is a packet of cigarettes as good as —," quoting the particular trade mark. In a famous case in the House of Lords, the Yeast-Vite case, it was held that it was no breach of the right of the registered proprietor if another trader sold goods which were not the goods of the registered proprietor, which were not goods marked under that brand at all, but which bore on the face of them words like "The same as" or "As good as," followed by the name of the goods of the registered proprietor.
Clause 15 is designed to say that among the rights which belong to the registered proprietor of a mark is the right to prevent other people using his mark as a means of selling their own goods, which have not the quality, the reputation, or the standard built up by him under the original trade mark. I think that is a proposal which will appeal to the fair-mindedness of hon. Members. I do not anticipate that there will be any difficulty in having that Clause added to the Bill. It seems intolerable that when a man has built up a business it should be open to somebody else to label his goods "These are not the other fellow's goods, but they are as good as his," and to use his trade mark or in other words, without having spent a penny on building up the business, to settle as it were under the colours of the other man's flag. I do not 516 think it is a practice which the commercial community wishes to encourage, and I believe that Clause 15 which is inserted to give power to prevent that kind of usage will be approved. I have mentioned the use of the words "This is as good as—." Other words are "This is a substitute for—," but whatever the form of words, the Clause is designed to prevent people taking a good trade mark in vain, by pretending that their goods are equivalent to or replacements of, or as good as the original goods, without suggesting of course that the goods on which these comments are made are the goods of the proprietor of the trade mark.
There is nothing in Clause 16 calling for remark and I come to another important Clause, Clause 17. A great many of us who have had experience in these matters have come across this question. A trade mark is attached to goods. How far can the owner of the trade mark insist that the goods which leave his factory, packed in a particular way, cartoned in a particular way, bearing a particular label shall be kept packed, cartoned and labelled in the same way for distribution by the purchaser of the goods? The broad law on the matter is that if you make a contract as seller with another person as buyer, you can attach to the contract conditions to that effect but once that has been done, if your purchaser in his turn sells to another the original registered proprietor cannot bind the subsequent purchasers. That is the law as it stands, and the amendment of the law which the Government recommend to the House is to enable the registered proprietor of a trade mark to attach conditions to his goods which will be binding on any subsequent purchaser who knows that those conditions exist.
§ Dr. Burgin
No, not price. There was a discussion in the Departmental Committee—and I would refer hon. Members to the report—as to whether price control should be among the matters which could be attached by way of condition. As that has been reported on by another committee, the Trade Marks Committee felt that they were not called upon to sit as a court of appeal in reference to it, and the question of price control was withdrawn. There are two conditions of a different character—conditions of pack- 517 ing and presentation which it is thought might rightly be attached to the goods and "to run with the goods," to use a lawyers' expression. Hon. Members will remember the phrase "running with the land" in covenants connected with housing estates. Something of the same idea is incorporated in the conditions allowed to be attached by a registered proprietor which will "run with the goods" into the hands of any purchaser, but there is no provision that he may attach conditions as to price. There is nothing in Clause 17 which is intended to cover that.
Hon. Members if they wish some illuminating examples of what this Clause is intended to deal with should refer to the report. There they will find, in paragraph 179, on page 48, some very curious instances of all kinds of removals, obliteration, partial obliteration and defacement of registered trade marks which were brought to the notice of the Committee. Genuine cartons of proprietory goods were found to have been covered with all kinds of odd slips relating to ice-cream stores, billiard saloons and on one was even an extract from the "Daily Herald." Matters of that kind are an abuse on the face of a trade mark. The Departmental Committee have accordingly advised the rather middle course that the proprietor or registered user can contract with the purchaser against certain specified things. Those restrictions run with the goods and the contract becomes enforceable without notice. Clause 18 deals with certification and there is a Schedule. Clauses 19 and 20 are sets of proposals dealing with special goods such as those of the Cutlers' Company in Sheffield. Sheffield marks and textile marks are always dealt with on a separate footing and need not detain us now. Clauses 31 and 32 are the only other Clauses to which I desire to call the attention of the House in the Second Reading speech. They deal with matters to assist export traders. At present registration limited to goods that are to be exported would in certain cases be invalid. In these Clauses it will be possible to register a trade mark limited to those goods of the manufacturer which it is intended to export.
I apologise if I have dealt with the matter on somewhat general lines and 518 in somewhat other than the usual method of dealing with a Bill, but when the House comes to look into the technical provisions of the Bill for dealing with trade marks which are an intricate part of the law, they will have cause for gratitude rather than criticism.
§ 8.6 p.m.
I beg to move, to leave out the word "now," and, at the end of the Question, to add "upon this day three months."
I move the Amendment in order that at the end of the Debate we shall not be taken as having misled the Government into thinking that we were not going to divide. On the other hand, if we get assurances on this Bill, I will not say at this point that we will actually divide the House on the Amendment. The Parliamentary Secretary, whom we congratulate on the recent recognition accorded to him, need not apologise for the manner in which he has introduced the Bill. It is a long, technical and legal Measure, and the right hon. Gentleman, as always, has given an able and lucid account of the salient and important Clauses.
Although I am at this stage moving the rejection of the Bill, I should like to say that the Goschen Committee was on the whole exceedingly capable and patient in its work, which has resulted in a large number of detailed recommendations for the improvement of the trade mark legislation which all sections of the trading community will welcome. But that should not prevent us—and the Parliamentary Secretary would not expect that it should—from levelling a critical eve at those parts of the Bill which, while purporting to do certain things for which the mercantile section of the community have been pressing, constitute such changes as may mean infringement of the rights of the consuming public. Whenever we deal with legislation of this kind which is of a restrictive character, hon. Members of whatever party ought to examine it not merely from the mercantile point of view, but from the point of view of what is the right and proper thing to do in the interests of the whole community. It is from that angle that we have to level some criticism at the Bill.
The Parliamentary Secretary made particular reference to two important Clauses 519 in the earlier stages of the Bill—Clauses 4 and 7. I shall leave my hon. and learned Friend the Member for North Hammersmith (Mr. Pritt) to say something about the drafting of those Clauses. Having consulted him and other legal friends, I feel that, while the objective may be well-intentioned, I should not like the wording of those Clauses to be the final dictum on the Statute Book on which cases are to be decided. The objective is quite worthy and one to be supported, but I must warn the Parliamentary Secretary that there will be a considerable volume of criticism as to the involved nature of those Clauses. They are based far too much on the kind of language which is necessarily adopted in the report of a Departmental Committee; it is hardly the kind of language which ought to be the basis for the construing of legal enactment in particular cases.
I come to the subjects on which I have been most moved to put down this Amendment for the rejection of the Bill. When the Parliamentary Secretary talks about Clause 15 with some enthusiasm, I cannot help thinking that he is not really keeping in mind the whole of the communal interest in the passage of legislation in this House. He bent his attention to an attempt to preserve not merely the rights and privileges but the monopoly interests in sections of the community which might well run inimically to the wider body of consumers. I do not for one moment quarrel with the general outlook of the Goschen Committee on deliberate attempts to defraud the public by the use on an article of a printed label or trade mark for a wrong purpose, or in the retention of a trade mark itself and the defacement of other parts such as the cases referred to by the Parliamentary Secretary in quoting the report of the Goschen Committee. But when we look at the possible effect of Clause 15 there are important considerations to be taken up.
The wording of the Clause in this case also is difficult to follow, but it appears to me that, if this Clause is not amended, trade mark infringement will occur if anyone makes any reference to other goods which they were selling under a mark. For example, it will be impossible to sell a medicine as "similar to." The Parliamentary Secretary used the term "as good as." I might quote the name of 520 the article which was the subject of the case in the House of Lords quoted in the Goschen Committee's Report. Obviously this particular Clause is aimed as a reply to criticism in reference to the case Irvings Yeast-Vite Limited v. Horsenail. It will be impossible to sell a medicine as "similar to," although in effect the two productions might be identically made of common substances in which there is no special virtue. The only virtue is in the use of the adopted trade mark which might perhaps lead to an exploitation of the public in price which is absolutely indefensible.
The Parliamentary Secretary smiles at that but anyone, who has knowledge of a manufacturing laboratory occupied in preparing a formula for the manufacture of common remedies and substances used day by day by the people, knows perfectly well that over and over again you get a substance, very beneficial for general use, which can be manufactured, say, for 2d. and which, with the packing and distribution, might well have another cost of 2d. added to it. But by means of a steady insistent propaganda and page advertisements in the newspapers it sells regularly at is. 9d. or 2s.— a tremendous margin of profit. What we fear under this Clause is the position of those who, not wanting to exploit the public in the use of quite good and popular remedies, provide something of exactly the same efficacy but at a price well within the reach of the working-class consumer, and, instead of charging Is. 9d. or 2S. put it up at 6d. If a customer comes into a store and says, "May I have X article?" and the salesman says, "We do not stock it, but here is our own preparation which is as good as X," it seems to us that under this Clause he will be committing an offence. Instead of merely preventing deliberate attempts to defraud in the use of a label, which I can well understand is their object, the Board of Trade will under this Clause actually protect a monopoly in an article governed by a trade mark and the maintainance of unreasonable prices to the public.
§ Dr. Burgin
Would the right. hon. Gentleman allow me, in order to clarify my mind, to put to hire a question? Is he suggesting that the salesman behind the counter merely gives it as his opinion that the other article is as good as the proprietary article for which the customer 521 asked, or is he contemplating that the article which is to be tendered in exchange is to have on it an indication that the substitute article "is as good as"? There is a considerable difference, and I would like to know what is in the right hon. Gentleman's mind. A salesman may express an opinion that something is, in his judgment, as efficacious as something else. That is another matter. What I am anxious in this Bill to prevent is that where there is a goodwill in a particular substance built up under a name, which is as much property as the ownership of the factory in which it is made, it should riot be taken away from the registered trader by somebody else pretending that something else "is as good as."
I am much obliged for the question. I said at the outset that I thought the wording of this Clause was not clear. The use of the words "to import a reference to some person" in paragraph (b), taken by themselves without the preceding words, might lead to a good deal of dubiety in the minds of those people who have to handle the business afterwards. For the moment I am arguing as if they applied to oral reference as well as to the actual inscription, but that is not the only point. You may have a recognised trade mark for what is, after all, a common substance including a trade name. You may get a trade circular, not for general publication, sent from the factory or laboratory to all your branches, not using any trade mark, but giving instructions that your production A is to compete with this other trade mark production. If a copy of that circular became available to anybody interested in the trade mark article, then, under this Clause—the Parliamentary Secretary shakes his head, but I was the Member of Parliament to whom he referred just now, and I do not mind it being said that I was a witness before the committee. I know what I am talking about on this subject. I went out of my way to make particular inquiries of the sections of the important Department which deals with this matter, and the presentation of the matter as I am putting it now was not out of the minds of the officials who were dealing with the drafting of the Bill.
We must have a complete assurance on that point before we 522 get through the stages of the Bill. In view, however, of the general attitude of the trade, to which the Parliamentary Secretary referred, it is vastly important, in the interests of the consuming public, that we should not try to attach the same privileges of a vested interest to an article under a trade mark as there are already in the case of a patented article. There has always in the past been a perfectly open chance for the consuming public, as long as it was not deceived by a fraud in the misuse of a trade mark, to make its choice between articles available to it. We fear that under this Clause that we are proceeding to a situation in which it will be almost impossible for the consuming public to have an adequate choice of common remedies or common articles of use because of the restriction put on those who are competing with particular trade mark articles.
The House of Commons ought not to stand for a situation like that. We are all the more concerned about that because of Clause 17. I well remember the report of the Committee of the Board of Trade some years ago on the restraint of trade. I have not got that out of my mind at the present time. It is true, and I am grateful for the fact, that as a result of the report of the Goschen Committee we have not at this moment to fear special restriction with regard to price. But there are conditions in Clause 17 which seem to me to upset the whole basis of most of the principles of English law in such matters in seeking to give the right to pursue somebody in relation to a commodity who is no party to the contract with the pursuer. That seems to be entirely wrong according to the basic principles of English law. I am not a lawyer, and I will leave the lawyers to argue that out, but it is something I do not like. May I put a case in which I am particularly interested, and I must argue it in the first instance from a price factor, although price does not enter into Clause 17.
If you get, as you do, a body like the Proprietary Articles Trade Association setting up a rigid boycott of any purchasers of theirs who do not sell at a fixed price, there are occasions when their first purchasers do in fact enable these goods to be received and to be sold by other traders. Why should that third party be sued by any member of the Proprietary 523 Articles Trade Association with regard to price? If that holds good in regard to price, why should it not hold good in respect of any of the other general provisions, except the actual case of fraudulent misrepresentation or fraudulent defacement of a registered trade mark? On these two points we want to do all we can to strengthen the law to prevent fraud on the public, but when we look at the wording of Clause 17 we fear very much that this is the thin end of the wedge, and that once you admit the principle of being able to pursue, not merely the other party to a contract which the pursuer has made, but somebody else, it will be competent to proceed in relation to other considerations as well. On these grounds, unless we can get wider assurances I shall certainly divide the House. If we get assurances which meet my points, I shall not ask my hon. Friends to divide, but I do insist that when we are passing trade marks legislation we must have regard to the general public interest and not merely to that pressure of mercantile interests to which the Parliamentary Secretary referred.
§ 8.25 p.m.
§ Mr. Clement Davies
I should like to take this opportunity of congratulating the Parliamentary Secretary upon the well-deserved honour to which he has recently attained. We all know the tremendous amount of hard work which he has done in his present office, and he has earned the admiration of the whole House. In the second place I should like to congratulate him on the very lucid way in which he so shortly described this very complicated Bill. In regard to the right hon. Member for Hillsborough (Mr. Alexander), I wondered why it was that he had put down the Amendment for the rejection of the Bill, but when he came to develop his argument the reason appeared to be fairly obvious. He began by saying, quite rightly, that it should be the duty of this House to look after the interests of the whole community, not merely those of the manufacturer and of the trader but also those of the consuming public. That is the duty of the House. I would point out that a trade mark is not merely a protection for the trader but a protection for the buyer and consumer. Obviously that is so. It is provided so that the buyer and consumer can know that the article he is purchasing is the one 524 he wants. That is the whole purpose of the trade mark.
The position has been built up by the trader advertising his goods so that the consuming public may know that they are his goods and nobody else's. Originally the trader used to write his own name on them—John Jones or John Williams—then he began to add his address, and afterwards he put signs on. At last Parliament intervened and said that he should be protected, and that nobody else should copy that name or that mark, and then not only would he be protected but the consuming public would be protected. That is the whole purpose. When we come to Clause 15 of this Bill, which was the point of the right hon. Gentleman's opposition, I am absolutely staggered at the attitude he has taken up. As the Parliamentary Secretary has pointed out, it was brought to the attention of everybody in the case of Yeast Vite that a fraud could be perpetrated upon the public, and when the Parliamentary Secretary put a direct question I think the right hon. Gentleman was in some difficulty in replying, because he does not want to defend a fraud.
§ Mr. Davies
But where are you going to draw the line? In that case a man had a proprietary article known as Yeast Vite and a large trade had been built up. The name was registered and everybody knew it. Then another man came along and put on the market an article which was not Yeast Vite but a substitute for it. On it he wrote "Yeast Vite" in large letters. A customer goes into a shop and says, "Give the Yeast Vite" and is handed this substitnte. Afterwards, when he points out that it is not Yeast Vite he has pointed out to him the little words "substitute for." That is getting precious near to fraud. An action was brought: by the proprietors of the trade mark claiming that there had been an infringement of it. The matter went before the courts and was taken all the way to the House of Lords, which decided that there had been no infringement of the trade mark, because it was stated that it was not Yeast Vite but "substitute for" Yeast Vite. Does the right hon. Gentleman suggest that the law should be allowed to remain in that state?
525 There are a great number of proprietary articles which are known to the public, and the public want them. They have been very much advertised and they are well known. You may have the finest article in the world, but if the public do not know of it what is the use of it? That is why large sums of money have to be spent in advertising. Then somebody comes along who does not advertise but relies upon other methods. Taking the example of Bovril which the Parliamentary Secretary gave, he says, "I cannot make Bovril, I cannot sell my preparation as Bovril" and puts upon the bottle "substitute for Bovril." If somebody came into a shop asking for Bovril and was handed that preparation, would the right hon. Gentleman defend it?
§ Mr. Davies
The whole purpose of this Clause is to deal with such a case. Then it is said that if a trade circular is sent round saying, "The articles we are about to sell now will be as good as so-and-so's" it would be an offence. That would not be the case so long as it was merely a case of boosting. There is the very well known case which is known to the hon. and learned Member for North Hammersmith (Mr. Pritt), on which so many of us have been brought up, dealing with something being "as good as Elkington A.1." That was merely boosting, and so long as it is boosting only it is all right, but if you are trying to deceive the public, trying to pass on to them something in substitution for the article which they really want, it is a fraud and it ought to be stopped. The whole purpose of this Clause is to prevent it, and I honestly cannot follow the objection of the right hon. Gentleman opposite. The Bill as a whole not only meets with the approval of all the traders, but it brings our legislation into line with the legislation in other countries, and undoubtedly it will be followed—as the right hon. Gentleman opposite knows, because he has been into the subject—by all the Dominions and by other countries as well. I hope the House will have no hesitation in giving a Second Reading to the Bill.
§ 8.32 p.m.
§ Mr. Barnes
I think that the hon. and learned Member for Montgomeryshire (Mr. C. Davies) has given us a very 526 fraudulent interpretation of the speech of my right hon. Friend the Member for Hillsborough (Mr. Alexander). I should be sorry if the inquiry directed to the Parliamentary Secretary were obscured by introducing the question of fraud on the public. No one can say that the speech of my right hon. Friend was a justification of the palming off upon the public of articles by a fraudulent description. What we are concerned about is the vagueness of Clause 15. Before we confer further powers upon those who, in my view, are a privileged section of traders, we are entitled to have definite assurances as to how far these new proposals go. Let us look at the position of a trader under the Trade Marks Acts. He brings together certain ingredients and describes his preparation as a proprietary article. He cannot of himself enforce his proprietary right in the markets of this country or in the markets of the world, but the community, through Parliament, has given him certain privileges and protection, and that being the case Parliament is entitled to ask for safeguards and to ask that that individual shall have a sense of his public responsibilities.
What is actually happening in many cases is that owners of proprietary preparations are taking advantage of this legal protection to practise frauds on the public in the claims they make regarding the curative powers of their preparations and in the prices they charge for them. I should have felt much more satisfied if the Board of Trade, while proposing to extend this legislation, had inserted safeguards which are very essential for the protection of the public at large, had imposed obligations on the owners of proprietary preparations which would prevent them from exploiting the public.
To come to the major point that we have in mind: I was surprised at the statement of the Parliamentary Secretary, if I gathered his point correctly. I will take Bovril as an illustration. I believe he said that, under the provisions of the Bill, a firm like Bovril Limited will now have not only a protective right in their specific patented brands, which may be of beef extract or something else, but will have also a similar right of legal protection of the name of the manufacturing firm. Have I gathered the point aright?
§ Dr. Burgin
No. The point with regard to "Bovril" was that it is a beef 527 extract and is a word that you can register at present only under the classification of food, foodstuffs and so on. I was suggesting that it would be wise to give the proprietor of the trade mark the power to prevent the manufacturer of another substance in another class from using the word—to prevent him using the word "Bovril," for instance.
§ Mr. Barnes
If I remember aright, the illustration used was "boots," and that you should not apply the name "Bovril" to boots.
§ Mr. Barnes
That suggestion appears to me to be carrying the law to a dangerous extent. I cannot see the utility of a provision of that character. There is no competition between boots and beef extract, and no question of substitution or of imposing upon the public a substituted brand. It might have a restrictive action upon trade generally. Suppose there were a firm whose name was Bovril and they were manufacturing shirts and wished to place the word "Bovril" on their shirts. Why should you say that an individual whose name is Bovril should have a protective right to label his goods, which are food extracts, and another individual of the same name should not be able to apply his name or the name of his firm or company to his particular brand of manufacture? That might lead to a very difficult and dangerous situation. What we are pressing for is that before the House gives a Second Reading to the Bill, the Minister should make it plain that this legislation, while giving legitimate protection to a legitimate firm in putting a mark upon a fair article, shall not have the effect of conferring a monopoly in that commodity and for that brand of goods, and that any other firm, possibly within a common range of goods, should be able to produce their own brand, provided that they do not actually use the name. I accept the point of view put by the Parliamentary Secretary. We want assurances that there will not be, as a result of the Bill, a development of further restrictions in the realm of proprietary goods.
§ 8.39 P.m.
§ Mr. Spens
Let me say a word on Clause 17, first adding a word to what was said by the hon. Member for South East Ham (Mr. Barnes). I do not believe that Clause 15 is likely to embarrass traders very much. Anything in the nature of fraud has been strenuously opposed by those who are opposing the Bill and I cannot help thinking that, if there is any doubt, it will be possible in the Committee stage to put the Clause in such a form as will not cause any great liability on traders.
When I come to Clause 17, I am bound to say that I begin to feel a doubt, and when I hear of covenant running with goods, similar to covenant running with land, I begin to sit up and take notice. I agree that when you have got the goods from the hands of the first purchaser, who has contracted to sell them only on certain terms, into the hands of a sub-purchaser, or a sub-sub-purchaser, no doubt, in many cases, the original owner of the proprietary article may suffer, at the hands of third or fourth parties, something very near to the nature of grave, fraudulent devices. On the other hand if you attempt to make contractual conditions running with goods, into whosesoever hands they come, it seems to me that you are introducing a new principle which may require very careful consideration in the House of Commons when the Bill goes into Committee and as I may not be there, perhaps I may make a remark about the difficulties winch I foresee.
When dealing with obligations affecting land, every purchaser has to investigate the title. Nobody purchases land, if he is wise, unless there is a full investigation, and for his sins, of course, he has to pay members of my branch or of the other branch of the profession. When one purchases large consignments of goods there is no investigation of title, although there may be some question as to the character of the person who sells them. There is no investigation as to the title to goods or of the possible conditions restraining the manner in which you are to sell them when they are in your hands. Here is a Bill which, no doubt quite rightly in the interests of the owner of proprietary articles, is endeavouring to impose upon the sub-sub-purchasers liabilities in respect of the sale of those goods. True, it is limited to persons who 529 sell them knowingly, and that those who are ignorant, plead ignorance or prove ignorance of the conditions, can succeed in defending such an action as tins, but it seems to me that you are putting into the hands of the owners of proprietary articles the right to bring a number of actions against retail distributors of goods, in which actions the burden of proving knowledge of the conditions would be on the defendants. The Clause might very well work, if the special conditions which are to run with the goods, into whosesoever hands they come, could be printed on the carton or something of that sort, in which the goods are packed, or if the mark itself could be made to contain the notice of the restrictive conditions.
It seems to me that it would be difficult and dangerous to traders as a whole to go the length of protecting the owners of proprietary articles by making a possibility of—I will not say abuse—by owners of the articles by a series of actions against retail traders, in order to protect their proprietary interests in a trade mark. Before we finally part with the Bill we ought to get an assurance that some further provision will be imposed, envisaging the possibility of damage that may be done to retail traders who may be constantly brought under the obligation of selling goods, which they had bought in perfect innocence, while ignorant of the conditions which had been laid down by the owners of the proprietary articles. Subject to that, I will congratulate my right hon. Friend upon having introduced this Measure, dealing with a great number of matters in trade mark law, not asked for but very much desired.
§ 8.45 p.m.
§ Mr. Broad
I am sure that no Member of the House wants to see any opportunity for fraud or substitution that is intended to deceive. We are long past the days when we used to be told that adulteration was merely a form of competition, and the same applies, of course, to substitution. But, at the same time, we are at a period when everybody is trying to build up a little preserve or monopoly, and I am very much afraid that the provisions of some of the Clauses of this Bill will have that effect. The Minister mentioned the possibility 530 of a trade mark like Bovril for boots, and one could suggest other cases of a similar kind. For instance, there is a well-known brand of cigarettes called "Black Cat," and there are people who sell "Black Boy" chocolates. The word "Black" is an essential feature of both names, and I suppose the "Black Boy" chocolates people might be regarded as infringing the trade mark of the "Black Cat" cigarettes people.
Many articles are now sold in packets or cartons which previously were sold loose or were prepared in the home. Many people at one time used to bake beans. Then a certain firm came along, baked beans, put them up in tins, and advertised them. They have certainty a. right to their own particular brand of baked beans, but if an essential feature of the trade mark is the words "baked beans," it would seem to me that nobody else would he able to sell their own brand of baked beans, because an essential part of the name was the "baked beans" part. There is nothing special about baking beans, and, because someone showed initiative by putting up baked beans in cartons or tins, that is not to say that they should have a monopoly for all time. Someone else sliced potatoes thinner than usual and sold them in cartons as "potato crisps," and apparently it will not be possible for anyone else to sell the same commodity as potato crisps because that expression is an essential feature of the present brand.
§ Mr. Broad
It is in Clause 15, which says:That right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof…uses a mark identical with it or comprising any of its essential features or colourably resembling it.There is one particular case that I have in mind. Some chemical people were selling a new and very valuable kind of disinfectant, for use as a gargle and so on. It was called "thymol," and, in order to make it ready for use, it was compounded in some way with glycerine. Prescriptions were given by doctors, that you took to the chemist, for this "Glycerine of Thymol." It became 531 more generally used, and then a very big firm—an American firm—put up the stuff as a standard article and called it "Glyco-Thymoline." Other firms began to do the same thing, calling it "Glycerinated Thymol," or "Glycerine of Thymol," and, since "Glycerine of Thymol" or "Glycerinated Thymol" sounds very like "Glyco-Thymoline," it might be said that one could never sell glycerine in combination with thymol because of this trade mark "Glyco-Thymoline." What I am afraid of is the creation of monopolies in that way. [An HON. MEMBER: "Glow lamps."] Those were originally known as incandescent lamps. After a great deal of experiment and research they were made possible by a man who never devised any lamp at all, Professor Swan, who devised the method of flashing the filament so that it would give out light. The only name by which people knew them was that of incandescent lamps, but presumably such a title would now confer a monopoly, because, unless some distinctive or fancy words were added, those words would be an essential feature of the name. The intention, apparently, is that certain particular companies or combines of companies shall have a monopoly in the case of articles like soap, disinfectants, or vacuum cleaners—not the Hoover, but any kind, because "vacuum cleaner" is an essential part of that name, although people would not know what else to ask for. It seems to me that, if that be the intention, the effect will be to give sectional monopolies in particular ranges of commodities. I am very much opposed to that, and I think the House would be opposed to it in the interests of the general public.
This is not a question of some new invention, but a question of commodities and articles which have been in general common use, which people have made for themselves, but in the case of which someone has taken the initiative of bottling, tinning or packeting them under a name which has become known. Now, apparently, nobody else is to be able to sell them, because certain words are regarded as being an essential part of the trade mark. We see this, not only in connection with particular commodities, but in connection with particular sections of professions which try to make a little ring-fence for themselves which nobody else 532 is allowed to enter. We see it even in the agricultural industry. However much people may wish to grow potatoes, yet in this free and happy land a man may be fined £5 an acre for growing potatoes. I do not want to see anybody fined £5 a bottle for selling glycerine of thymol, or£5 a bag for selling potato crisps.
§ 8.53 P.m.
§ Mr. Pritt
While I want to say a certain number of things against this Bill, I recognise, with other Members, that in the main it is a good Bill. When the right hon. Gentleman apologised for explaining the Bill, he was apologising for a virtue. It is a virtue which we often find in his particular Department, and which we only wish that other Government Departments would copy. I was interested to note that at the outset the right hon. Gentleman pointed out that this Bill is demanded by strong pressure from the commercial community. That reminds us that really the only thing that will get any action out of this Government is the pressure of the commercial community. Indeed, if the trade mark "His Master's Voice" is not taken by some other firm in the same class, I think His Majesty's Government ought to register it immediately for themselves. This Bill is a Bill to increase the monopoly rights of certain people, and the House of Commons has always been careful, and ought to be always increasingly careful, when passing legislation which increases the monopoly rights of any person or of any group of persons.
Monopolies are prima facie an injustice, but when the operation of monopolies in modern times is simply a method of transferring more and more wealth to people or groups who are already too wealthy, a monopoly commonly develops into a ramp of the worst type. Every one running any concern which can protect itself by a patent or a trade mark owes a duty to the shareholders to extract as much money from the public as he can. He carries out that duty with great efficiency, and one of the methods of carrying it out is to exercise pressure on the Government to produce more legislation to assist him to do so. At the same time, every one in the House ought to be willing to help in any legislation which will put a stop to fraud of any kind. We know from the speech of the Secretary of State for 533 War last night, on which we confidently rely to win us at least 30 extra seats at the next election, that fraud is a necessary and integral part of modern capitalist trade. He even pointed out that for that reason we ought to indulge it, but I am sure the House in general will not subscribe to that view, and we shall all agree that legislation to prevent fraud, however difficult to pass and to enforce, should certainly be encouraged. We also recognise on this side of the House that, at any rate to a very considerable extent, we should welcome legislation which protects the legitimately built up goodwill of any honest trader.
I want to say a few words about the merits and demerits of one or two of the Clauses. Generally I want to complain about the drafting. I do not think I have ever criticised the Parliamentary draftsmen before, although I have criticised innumerable Bills which were the result of the conflicting efforts of the Parliamentary draftsmen and of various Members of the House itself. But for one reason or another, perhaps owing to the inherent complexity of this legislation, there is a great deal in the Bill which is really very bad. Bad drafting is not only a method of adding to the wealth of a particular section of the community which is already not unduly impoverished. It is a much greater evil than that. It enables the strong man to crush a smaller competitor by a threat of litigation and it compels innumerable traders to refrain from doing those things that they might well want to do, because their solicitors tell them that if they do them it may or may not be an infringement, and it will cost several thousands to make sure whether it is or not, and it adds in the end to- the cost of the goods the whole of the exorbitant charges which litigation due to uncertainty in drafting brings about. It is a matter which can partly be dealt with in Committee, but, owing to pressure of time, or to difficulties inherent in the application of the English language, it will not be dealt with in Committee.
Every one who has brought his mind to bear on the matter is now in substantial agreement that what Clause 15 is intended to do is a reasonable thing to do, a thing like the Yeast-Vite decision, a thing 534 which ought to be covered by a special Section in a Statute. If it can be brought about, it is right that it should be done. The difficulty is immensely multiplied when you have powerful interests which, if not ingenious themselves, can at any rate hire people who are ingenious to apply Sections to things to which they were never intended to apply, and it is most important that the drafting should be right. My right hon. Friend the Member for Hillsborough (Mr. Alexander), who has been advised by competent lawyers that he is right, as well as by other competent lawyers that he is wrong, is quite sure that there is a real danger that this Clause will hit an oral description in the same way as it hits a printed description. I do not think so, but I have been wrong in my time, though I am sure the House will not believe it. The mere fact that it is possible may be sufficient to prevent many people even daring to try to sell their goods. I think it can probably be remedied in Committee, but it is not a very easy matter.
With regard to Clause 17, I was glad when the hon. and learned Gentleman the Member for Ashford (Mr. Spens) rose, because I felt certain that he would put the ordinary Conservative lawyer's view, and he did, though he did not put it with any great prolixity. It is a completely revolutionary Clause. That, of course, does not frighten me in itself, but I like my revolution to be tidy, to be effective and to be devoted to a good end, and I am very worried about this Clause. Firstly, it attempts in the law of contract a revolution which is very ill conceived. Secondly, in its actual wording it enables proprietors of branded goods to impose price restrictions; and, thirdly, it applies this new doctrine with such carelessness that it makes the operation both unnecessarily wide and unnecessarily uncertain. The law of contract is, ordinarily speaking, a branch of the law under which only the parties who voluntarily contract themselves to particular things are bound. There have been innumerable efforts by ingenious people to extend that doctrine for the purpose of assisting the game of price maintenance, which has 10 vices for every virtue that it possesses, and they have on the whole failed. It is pretty generally recognised in law that the transferability of a con- 535 tract is a new weapon which should be watched with the very greatest care.
The Clause not only enables the rich vendor of branded goods to follow his contractual rights right along with his goods, to perhaps the seventeenth purchaser, but it enables other persons also who may have become the proprietors of the trade mark at different times, to do so. So, instead of what ought to be a case of a simple and carefully limited extension, you find that both parties to the contract may be varied. That is a bad start, because, Heaven knows, contract law already is indefinite and undefined enough, and if you are to have one rather badly drafted Section in one Act which is going to "manufacture" half a dozen different people to a contract on both sides, it makes the law more complex than ever. The next complaint I have to make is one which is rendered worse by the fact that you have already an infinite variability on both sides, and that is, that the contract is made applicable to the derivative parties, A, B, C, D, and E, and you get that next complexity. You start quite a simple contract between A and B, and B will sell to C, who sells to D, who sells to E, and A is meanwhile transferred to somebody else, so that you get A and Ai enforcing part of a contract against B only, and other parts of the contract against C, D and E. It is worse than that. The Clause leaves it uncertain as to whether you can enforce a transferable part of the contract against original B as well as against C, D and E.
I am glad to hear from the various murmurs that the House thinks that it is not a bad idea. We shall have four or five more judges if this sort of thing is to become at all more general, and then there will be plenty of briefs for worthy and unworthy barristers. There is a minor trouble about the Bill as drafted which can easily be dealt with in Committee. As the thing is drafted, if any goods come my way which have originally a contract made about them in this fashion, the burden of proof will rest upon me to prove that I am an innocent purchaser. What chance I should have to prove that I was an innocent purchaser in a suspicious court, I do not know. The most serious thing about it is this, and it shows how difficult it is to pass legislation of this kind without creating more evils 536 than you cure. You do not need to go further than (a) to find the very first thing about which a contract has to run with the goods: prohibiting the application of the trade mark to the goods after they have suffered alteration in any manner at all—it sounds very reasonable to see how the words go on—or in any particular manner as respects their state or condition, get-up, or packing.I do not suppose that it will take more than five minutes; in fact I expect that it has been done already by the astute people who run these big price maintenance proposals. They say that here is a Clause which says that once a trade mark is on the goods, you may stop everybody in the country selling the goods if there has been any alteration whatever in the get-up or the packing. So all that you have to do, as far as I can see, is this: If you have some goods—and this is how modern commerce works—if you have a bottle of some liquid or a tin of some powder which costs you a penny to make, 4d. to advertise and 2d. to market, you will sell it for 2s. 9d. Oddly enough you will be determined to use every power you have, including the legislature, to see that no one interferes with the substance.
There may be somebody who wants to sell it for less than 2s. 9d. You can get him at once by making the contract run with the goods, and so stopping him. All you have to do is to print in large and legible type, "These goods are not to be sold for less than 25. 9d." A man can sell them still for 2s. but he must not put a label over the tab, because he will be altering the packet. You are entitled to put a marl who wants to have a ramp in the position of being told by a solicitor, "You can sell it for 2s. if you can find a public to pay 2s. for a thing which has a label, "Not to be sold for less than 2s. 9d." If a thing which is sold for 2S. 9d. is offered for 2s., the public will think that it is soiled stock, and it will be very nice for the price maintenance ramp.
I ask for some assurance that this Clause will be very carefully reconsidered before anything of the sort is allowed to go any further. I would make this practical suggestion. We all want to stop fraud of any kind. There is already in trade mark law a well worked out system showing how far you can go by legislation about trade marks to protect one proprietor 537 against another when it is legitimate so to do. I do not pretend that it is simple and perfect. If it were either there would not have been the Goschen Committee nor this draft Bill, but what can be done is sufficiently worked out, and I suggest that the matter should be reconsidered. There are quite plainly some evils to be dealt with in Clause 17. They can be dealt with by an extension of the trade mark law; that is to say, by the application of statutory enactments to packing or trade marks. This is not the time to make a very dangerous hole in a complicated thing like the general law of contract. As it stands I suggest that Clause 17 presents very grave difficulty indeed.
§ 9.13 p.m.
§ Dr. Burgin
It is only with the leave of the House that I can answer the questions which have been put but I think I can dispose of the matter relatively simply. In the first place, the Government have no cause to be anything but gratified at the way in which this Bill has been received by the House. It is clear that all parties think that some amendment of the trade mark law is required and that in large measure the Bill now submitted is one to which they desire to give support. I would like to reply to the suggestion that a defensive mark might lead to some extension of monopoly or the possibility of some abuse. If the hon. and learned Member will follow me for a moment, in the opening words of Clause 13 he will find that defensive trade marks are limited to invented words. There will, therefore, never be any prohibition whatever on members of the public using simple language and descriptions of articles by their proper names. I only give that answer immediately because it clears away a whole series of misconceptions on the part of certain hon. Members and enables us to proceed.
The substantial points have been made on Clauses 15 and 17. The hon. and learned Member for North Hammersmith (Mr. Pritt) was very harsh in his strictures on the draftsman. One would hardly have gathered from some of the expressions that he used that there had been any investigation into the matter at all. Of course, every Clause has been most elaborately sifted and is submitted as a serious suggestion for improvement of the existing law. If in Committee we find 538 that a Clause intended to deal with something is thought or is shown to deal with something wholly different, the House needs no assurance from me that that matter will be put right. If it is possible when we get to grips in Committee to simplify the language whilst retaining the amendment that we desire to attain, then let us by all means bend our efforts in that direction.
I am gratified to find a measure of general approval in the House with the object that the Government are seeking to attain. If some of our wording is imperfect, then we must try to improve it. If Clause 15 can really be thought to extend to the verbal boost by a salesman that a certain thing is in his judgment as good as or equivalent to aspirin, then that is nonsense. If it is necessary to delete or to insert words to prevent that impression gaining ground, then we can deal with it in Committee. I am convinced that the Clause does not mean anything of the kind and that the words in line 23 "uses a mark identical," cannot possibly be held to justify that impression. The right hon. Member for Hillsborough (Mr. Alexander) thought that Clause 15 might possibly cover a trade letter written by a trading concern to its branches, giving directions to managers, or to their laboratory making some comment on what was the object of some rival commodity. That, again, is a sort of thing that we can look at in Committee. I have not so interpreted the Clause. The particular purpose of the Clause is to prevent such fraud as the presentation of an article with a label on it as "being equal to," "a substitute for," or "as good as." That is a practice that we want to prevent. There is no question of the Clause having application to directions written from head office, or anything of that kind.
Clause 17 has been referred to by hon. and learned Members as if it were contrary to principle that one should suggest that a monopoly article should have certain conditions running with it and passing into the hands of different purchasers, as regards packing or presentation, etc. This is a new provision, but it is a provision that we have had in regard to patents. It is possible under a licence to include conditions even as far as price fixing with regard to a patented article, which will run with the article. This very important Depart- 539 mental Committee has recommended that there should be this extension. They made the recommendation, after hearing the evidence, that the extension should take this form, and Clause 17 has been drafted with a view to carrying out that recommendation of the Committee. By all means let us look at the wording of the Clause and in Committee see that we do not import into legislation something more than we intend to include, but do not let us take the view that a manufacturer who packs a particular article in a particular way is not entitled. to claim that those goods should not be unpacked or sold in a different form, and that in making that suggestion there is anything wrong. The idea is that the manufacturer when an article leaves his factory in a particular state should, if his customer requires it in a particular state, be entitled to say that it should reach the customer in that state.
§ Dr. Burgin
If and when the customer requires it. There is a whole series of things in regard to which a manufacturer ought to be able to attach conditions as to the packing, stoppering, etc., of his goods. What we are endeavouring to do is to implement the report of the Departmental Committee on this matter. I neither want to go beyond it nor less far. If our words are not apt, then let us in Committee revise them.
§ Sir Stafford Cripps
Is it the intention of this Clause to prevent the sale secondhand of goods under their trade name? That is to say, is a manufacturer to be able to impose a condition that a trader may not sell at second hand in that way That would be the effect of the Clause.
§ Dr. Burgin
It is not intended to do anything of the kind, and I do not think that it can be so interpreted, but if so that is a matter that could be adjusted. What it is intended to deal with is the case of the person who buys something, unpacks it, and then distributes it in different packages, and the whole method of the trade mark is altered and eventually the purchaser receives something completely different from the article as it left the manufacturer. That is one circumstance with which the Clause is intended to deal. The objects of the Government 540 are to carry out the recommendations of the Departmental Committee. In so far as the wording is inapt, I shall be very happy to amend it.
With that assurance from the hon. Member I should be content, if my hon. Friends agree, to withdraw the Amendment for the rejection of the Bill, provided that we can get attention to the matters that we have raised, when the Bill is in Committee.
§ Amendment, by leave, withdrawn.
§ Bill accordingly read a Second time, and committed to a Standing Committee.