|MINOR AMENDMENTS OF PRINCIPAL ACT.|
|Section Amended.||Nature of Amendment.|
|Section 62||For the words "Where any association or person undertakes the examination of any goods in respect of origin, material, mode of manufacture, quality, accuracy or other characteristic, and certifies the result of such examination by mark used upon or in connection with such goods, the Board of Trade may, if they shall judge it to be to the public advantage, permit such association or person to register such mark as a trade mark in respect of such goods whether or not such association or person be a trading association or trader or possessed of a goodwill in connection with such examination and certifying." there shall be substituted the words "Where any association or person undertakes to certify the origin, material, mode of manufacture, quality, accuracy or other characteristic of any goods by mark based upon or in connection with such goods, the Board of Trade, if satisfied that such association or person is competent to certify as aforesaid, may, if they shall judge it to be to the public advantage, permit such association or person to register such mark as a trade mark in respect of such goods, whether or not such association or person be a trading association or trader or possessed of a goodwill in connection with such certifying."|
|Section 64||Subsection (10) (a) shall be repealed. In subsection (10) (c) the word "word" shall be omitted.|
|In subsection (11) after the word "refused" the words "lapsed, expired, withdrawn, abandoned, cancelled" shall be omitted.|
§ LORD MUIR MACKENZIE
The noble Earl, Lord Grey, not being able to be present, has asked me to take charge of his Amendment. I do not think I need say anything about it, because I understand that it is agreed.
Page 7, after line 19, insert:
Section 22. At the end of the section there shall be added the following words ("and the assignment of such right to use the same shall constitute the assigneee a proprietor of a separate trade mark for the purpose of section twenty-one of this Act, subject to such conditions and limitations as may be imposed under that section").—(Lord Muir Mackenzie.)
§ On Question, Amendment agreed to.
§ LORD EMMOTT moved, in the Amendments in the Second Schedule to Section 62, after "The Board of Trade if," to insert "and so long as they are" The noble Lord said: I do not propose to move the first Amendment which I have on the paper [to omit from the Second Schedule the Amendments to Section 62] Perhaps I exaggerated the case a little on the Second Reading. I do not know, but I certainly venture to think that the Lord Chancellor was not quite seized of the whole case when he replied.
§ THE LORD CHANCELLOR
I entirely agree that the point was quite fresh to me when the noble Lord spoke.
§ LORD EMMOTT
I must confess that I do not see any point of British interest in the particular change which is being made. Personally, I should have thought the association marks should be an indication of quality, and that the best test of quality is that there should be an examination. I admit at the same time that the new words proposed do leave great discretion as to whether the association which seeks to register a trade mark is a fit one to certify as to the origin or material or mode of manufacture or quality, as the case may be; but the fear one has is that if after examination an association, say, of foreign merchants were allowed a trade mark, after a time through laxity it might become possible for anyone to join the association on payment of a fee, and use their trade mark, and so the privilege of using the trade mark might become abused. It is in order to prevent this that I move the insertion 737 of these words. I understand the Government accept the Amendment.
Page 8, line 1, at the beginning of the line insert ("and so long as they are").—(Lord Emmott).
§ On Question, Amendment agreed to.
§ LORD EMMOTT moved to omit from the second Schedule the last paragraph of the Amendments to Section 64. The noble Lord said: This is a highly technical point in a highly technical measure. It is proposed to leave out certain words in subsection (11) of Section 64 which deals entirely with the Manchester Registry. Leaving these words out would mean that it would no longer be necessary to make an inspection of applications for marks which have lapsed, expired, been withdrawn, etc. I do not want to detain your Lordships in order to describe what all these marks are. Why it is desired to retain these words, and why I have moved my Amendment is that I am told in regard to all these lapsed or expired or withdrawn or cancelled or abandoned marks that many of them are in practice being used, and it is undesirable that similar marks should be registered anew as trade marks. They are being used, of course, without the exclusive right to use as a trade mark, but they are being used, and the Manchester people interested in this matter attach great importance to the search, and desire that it should be retained. I understand that the Manchester Chamber of Commerce under pressure from the Department had agreed somewhat reluctantly to this Amendment.
§ LORD EMMOTT
I do not want to overstate the case. They agreed to this Amendment, and a good many representations were made to me asking me to move it. I found that all the Manchester Chamber of Commerce people whom I had met were anxious that this Amendment should be carried, and the words should be retained in subsection (11), Section 54. I therefore wrote within the last day or two to the Manchester Chamber of Commerce, and this morning I had a letter, that I gave to some one this afternoon, which shows that they desire that the search should be retained. As this is a Manchester matter I hope the Government will be able to accept this Amendment.
Amendment moved —
Page 8, leave out lines 11, 12 and 13.—(Lord Emmott.)
§ VISCOUNT PEEL
I will say just one word in reply on this point. My noble friend is quite right in saying that this Amendment was accepted by the Manchester Chamber of Commerce; in fact, I believe it was put in rather on their suggestion and not under any compulsion. Let me see what the point actually is. If these words are dealt with as the noble Lord suggests it is necessary to keep a record of all these marks that have lapsed or been cancelled. That will mean putting a considerable amount of labour upon the Department.
§ VISCOUNT PEEL
Yes, but unfortunately they are very short of staff. What is the objection that my noble friend has? He says that these marks are being used and ought not to be used by other persons as trade marks, but why should not they be so used if they have lapsed or been cancelled? Surely it is perfectly free to anybody else to use them, and possibly to register them under B as Common Law Marks. I do not understand the reason why the records should be kept. If my noble friend really presses it strongly, and withdraws the Amendment now, we will be ready to discuss it with the noble and learned Lord, the Lord Chancellor, before the Report stage. As at present advised there seems to be no necessity for doing what my noble friend suggests.
§ LORD MOULTON
I think that I can explain exactly the position in which we are with regard to this Amendment. It is a very curious one. The Manchester Trade Marks Office requested these words to be inserted in the Bill because they thought that this long list of abandoned marks was a nuisance and not very useful. The consequence is that the words in the Bill which it is proposed to leave out were put in at the request of the Manchester people, but they have reconsidered the matter, and they think that it is an assistance to people who are going to choose a new trade mark to be able to see whether it has been used in times past, and subsequently abandoned. They will be guided as to whether they are going to choose a 739 mark which is like it. I think that there is no objection to a record being retained of all those marks that have been withdrawn or refused or in other ways have disappeared. I think that what the Department is afraid of is that the record may be abused by its being supposed that because a mark is on the list of those that have been abandoned therefore it is an objection to a new mark. It is not an objection to a new mark if it has disappeared. But I cannot find that the Department object to this remaining on if the Manchester people desire it, only they are very anxious that the marks being on this Register should not be supposed to interfere with the freedom of choosing other marks, or that they should be cited as objections to marks that are applied for. I should advise your Lordships in this to do exactly as the Manchester people want as it is practically a Manchester matter. I had the letter that Lord Emmott spoke of handed to me. I can say that, having considered the matter, they think that these marks could remain on the record. When a thing has got on the record it may as well remain there unless it is an active nuisance. Going through the record and striking out the marks if they do no harm I regard as a waste of labour, and if the Manchester people, who take very great interest in trade marks and watch them very closely think that it is an advantage to the community that these abandoned marks should remain on the record, I should advise your Lordships not to compel them to alter their system. If your Lordships take that view then the Amendment of Lord Emmott will be accepted. I do not think it is a matter of great importance.
§ Amendment, by leave, withdrawn.
§ Second Schedule, as amended, agreed to.