TRADE MARKS BILL. (Hansard, 12 November 1919)

§ THE LORD CHANCELLOR
My Lords, this is a Bill which as far as I am aware excites less controversy than the Bill to which your Lordships have just given a Second Reading; it is less complicated in its conditions, and therefore I can explain its general outlines with a greater economy of time. The Bill substantially deals with the same matters as were dealt with in the Bill to amend the Trades Marks Act of 1905 introduced in the House of Commons in November, 1917. That Bill was not proceeded with; it met with the same fate as the Bill relating to patents, but the interval has been used in this case as in the other to obtain suggestions from those especially competent to deal with the matter.
This Bill like the one to which your Lordships have just given a Second Reading, had the enormous advantage of being drafted by the same Committee, presided over by the late Lord Parker, to which I have already made reference, and it, too, was most carefully considered by the Advisory Commercial Council of the Board of Trade. I do not think it necessary, unless and until a specific question or difficulty is proposed, to do more at this stage than briefly to explain each of the three Parts into which the Bill is divided. Part I contains proposals having for their object the providing of facilities for the registration in the United Kingdom of marks which though not registerable under existing legislation are nevertheless Common Law marks, and which could be protected in the form of an action which is known in law as a passing off action. The second subject-matter concerns proposals which have for their object the prevention of the abuse of word marks. The commonest form of such marks is the use by an owner of his word mark not for its proper purpose of distinguishing his goods from other people's goods but for giving a name to an article. I do not know whether I make myself clear to your Lordships, but the effect of this is that, under the protection of the Trade Mark law, the owner obtains in fact a perpetual monopoly of the manufacture of the article. It was never intended under any of the Trade Marks Acts that this particular abuse should be sanctioned, and many observations have been made as to cases in which the existing statutory provisions 241 have in fact been abused. The very distinguished persons who considered this Bill came to the conclusion that the abuse could be corrected in the manner proposed here. Part III consists of minor amendments to the principal Act. I think I need not at this stage call attention to any particular proposal.
I will only add that in Clauses 1 to 5 of the Bill an attempt, long overdue, has been made to frame a complete scheme for the registration of common law trade marks. It is hoped the effect will be to state, in a compendious form, a convenient code which will be of assistance to practitioners and also to the general public who are interested in these trade marks. I shall be very ready to give, so far as I can, any explanation in point of detail which I may have omitted, but I think I have given a sufficient indication of the scope and object of the bill to justify your Lordships in giving it a Second Reading.

§ LORD SOUTHWARK
My Lords, I rise not to delay the Bill but to thank the noble and learned Lord on the Woolsack for having so kindly consented to postpone the Committee stage, not only of the Bill now under consideration but also that which we have just discussed. I hope that when he sees the, Amendments which will be placed on the Paper after a consideration of the details of the Bill, be will feel that we were justified in asking him to take this course. There was, no doubt, a desire to hurry these Bills through at a late stage of our previous sittings, and I hope the noble Lord will think that we were justified when he sees the Amendments on the Paper.

§ THE LORD CHANCELLOR
I hope the noble Lord will not think it necessary, in order to convince me that the delay in the Committee stage is justified, to add that the interval will be used to put down a large number of Amendments.

§ LORD EMMOTT
My Lords, I wish to make a few brief observations on this Bill. In the first place I desire to apologise for the absence of my noble friend Lord Stuart of Wortley, who particularly desired to speak upon it, but who had to leave the House in connection with a prior engagement and so was unable to remain until we reached this Bill. I believe that Lord 242 Stuart of Wortley desired to express very strong opposition to the Part B Register and also to plead for reasonable delay before the Committee stage is taken. I cannot say that I go so far as to oppose altogether the Part B Register. I can quite see that there are points in its favour, but one important Amendment is very urgently desired by certain Chambers of Commerce. That is to strike out the words "without search" on page 2, line 6. If these words could be left out of the clause I think the opposition to the whole of that clause would not be so great as it would be otherwise.

§ THE LORD CHANCELLOR
Would the noble Lord tell me the page and the line to which he refers.

§ LORD EMMOTT
Page 2, line 6, to leave out the words "without search." If these words can be struck out I do not think there will be so much fear of its operation as there is now on the part of certain commercial men. A search is very important in regard to the trade mark Registries located in Manchester and Sheffield. These cities, as your Lordships know, have their own Registries and they thoroughly understand, from their own point of view in regard to the trade marks in which they are interested, the whole working of the system of trade marks. Nearly all countries have a search, and if a search is not to be insisted upon in regard to applications under the B Register all registered holders will have to watch each week the announcements which are made, because opposition will be their only defence, If they happen to miss anything a lawsuit will probably be necessary, and I maintain that it is not in the interest either of the applicants or of the opponents-that a lawsuit should be required in an instance like that, when search would meet the case.
There is another point. Many traders in the United States register trade marks here. How will they be able to inspect every week? It is quite possible, if legislation of this kind is carried, that there may be some movement for retaliatory legislation, so to speak, there, and I think that would be very undesirable. If the question is urged that it will cost money to make this search, there is very considerable profit realised at present in the Office of Patents and Trade Marks, and I am entitled to say, on behalf of the 243 commercial people who have considered this question, that they themselves would far rather prefer to pay a higher fee than go without a search. Finally, as, after a great many years of agitation, a search in regard to patents and the examination of patents has been set up, I do not think this is the right time to drop a search in regard to trade marks. That is all I have to say on that part of the question.
There are, however, one or two other matters I wish to mention. The words in Clause 6, subsection 2, "any single chemical substance," are extremely vague, and I hope His Majesty's Government will be able to accept an Amendment in regard to them, making what they desire, and I think what everybody desires, a little more plain and certain. There are other minor Amendments which, I think, will be moved but with which I need not trouble your Lordships.
Now I come to one which, although it is in that Schedule of minor Amendments in this Bill, seems to many commercial men to be a matter of very great importance. I allude to the Amendment to Section 62 of the principal Act. It will be found at the bottom of page 7 in the Bill. Whilst my noble friend Lord Muir Mackenzie was speaking of the minor Amendments in another Bill I was irresistibly reminded of this so-called minor Amendment, in regard to which there is the strongest possible objection raised by large groups of commercial men. Section 62 of the principal Act allows an association to register trade marks when examination of the goods which pass under that trade mark is insisted upon. I may be entering here on controversial ground, but it seems to me that the real point of an association trade mark ought to be a guarantee of quality, rather than anything else. I know there are other things mentioned, such as origin, and so on, but I think it ought to be a guarantee of quality. I do not see the reason for an association trade mark otherwise. A single firm may have a trade mark of its own. Its quality is known, whether it be good or bad, but when an association has a trade mark it ought to be a guarantee of quality and should be given only after an examination of the goods. Such trade marks have been of considerable use in regard to bodies such as the Irish Creameries and the Danish Butter Association. The objection raised to this Amendment to Section 62 of the principal Act is that it proposes the 244 omission of examination. I confess I do not quite understand why. There seems to me to be some misunderstanding between commercial men and the Government, and one reason why we plead for a little delay in the Committee stage is in the hope that some kind of adjustment will take place in the meantime.
What is proposed in the Bill will enable associations of foreign manufacturers to register a trade mark, and that trade mark will simply mean that the goods come from one ring of manufacturers who have formed this association. In the past it has meant something more. It has meant that the goods have been examined and are certified as to quality. In the same way associations here, which have been refused registration, may possibly be able to register under these new provisions. I hope the Government will see their way to drop this proposal. I am informed that it would be a very serious and regrettable innovation on our present practice, and I hope that between now and the Committee stage the Government will meet commercial men and see if some better understanding in regard to the merits of this question cannot be arrived at. At present there is a real misunderstanding on one side or the other, and it is most desirable that it should be cleared up.

§ LORD MUIR MACKENZIE
My Lords, I am not going to repeat my remarks as to the Schedule of the Bill. It has the same character as that of the other Bill, and the noble Lord who has just spoken has given very strong, instances of the objection of dealing with legislation in that way.

§ THE LORD CHANCELLOR
I confess that, as at present advised, I entirely disagree with the noble Lord. I think Lord Emmott gave a weak example. I may prove to be wrong in Committee, and I confess I had not examined the words in any detail at all until the noble Lord called attention to them. Frankly, I do not believe it will prove to be a trade technical matter, or, that the variation suggested has, in the least, as one of its objects, a desire to do away with the necessity for any such examination as that which the noble Lord finds useful. I should rather have said that it was intended, by the substituted words, to make the certificate one of more commercial value. I find that words are 245 inserted in the Second Schedule to this effect— The Board of Trade, if satisfied that such association or person is competent to certify as aforesaid, may … do exactly what they have power to do under the old Section 62 which has been varied. I may prove to be wrong, but the fact that there is still an insistence on this, and that fresh words have been introduced into the section to the effect that the Board of Trade shall satisfy itself as to the competence of such association to judge of quality, seems to me to be a most amazing basis for the argument that we want to get out of the examination. I rather think Lord Emmott is right when he says that this apprehension may be one which has no solid foundation. I have not read the words until this moment, but I will consider them before the point is raised in the Committee stage.