HL Deb 16 May 1922 vol 50 cc422-36

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Gorell.)

On Question, Motion agreed to.

House in Committee accordingly.

The EARL OF DONDUCHMORE in the Chair.

Clause 1:

Power to require indication of origin where make up gives false impression.

1.—(1) Where the Board, after making such enquiries as they think necessary for the purpose of enabling them properly to exercise their powers under this section, are of opinion that a false impression as to the origin of any class or description of goods imported into the United Kingdom is likely to arise by reason of their form, style, or finish, or otherwise, the Board may, subject to the provisions of this section, make an order requiring an indication of origin to be given in the case of goods of that class or description made or produced outside the United Kingdom.

(2) Where the Board propose to take into consideration the question of making an order under this section, they shall publish notice of their intention in the Gazette and in such ether manner as they think desirable, and shall not proceed to make the order until the expiration of at least three months from the date of the publication of the notice, and shall afford to all persons appearing to them to be interested in or likely to be affected by the proposed order an opportunity of making representations with respect thereto, and if they so desire of being heard by the Board.

LORD ASKWITH moved, in subsection (1), to leave out "a false impression as to the origin of any class or description of goods imported into the United Kingdom is likely to arise by reason of their form, style, or finish, or otherwise, the Board may, subject to the provisions of this section, make an order requiring," and insert "it is desirable in the public interest that."

The noble Lord said: This is the first of a series of Amendments of which I have given Notice. I think that the briefest way in which to deal with this matter is to read Clause 1 as it would stand if all the Amendments to this clause standing in my name were passed, and then to point out the difference between that clause and the clause as now printed. If my Amendments were made, the clause would read as follows: Where the Board, after making such enquiries as they think necessary for the purpose of enabling them properly to exercise their powers under this section, are of opinion that it is desirable in the public interest that an indication of origin should be given in the case of any class or description of goods made or produced outside of and imported into the United Kingdom, the Board shall make an order requiring such indication of origin: Provided that where goods are imported in bulk or sheet such indication of origin shall be displayed on each article therein comprised. It will be observed that the Bill as it stands is confined to cases where a false impression of the origin of any class or description of goods is given, and there is left out the question of any other matter when it might be of public interest.

I use the words "public interest" because this Bill is the outcome of a Committee appointed in October, 1919, by Sir Auckland Geddes, then President of the Board of Trade. That Committee made a Reportin 1920, and the Bill purports to be based on their Report. The Committee were a very energetic body. They held eighteen meetings, eight lasting all day; they examined seventy witnesses; and they conferred with representatives of all the Dominions and Colonies. They sent to the several Government Departments, and to organisations representative of trade, industry, and labour, and they stated that ample opportunity was "afforded to all interested sections of the community to place their views" before the Committee. In their Report they mention that an amendment of the present Merchandise Marks Act is required in respect of the provisions relating to indications of origin, and that the Act is directed to the suppression of false or misleading marks. They state that the principal question before them is whether there should be an obligatory rule to mark all imported goods, or a rule to mark any special classes of imported goods with a general or specific indication of origin.

In their report they threw out the suggestion that a general notification should be given, but they dealt specifically with the conditions on which goods should be marked. They said this— Conditions vary so much as between one class of goods and another, and between one trade and another, that we do not feel we can recommend any general provision that all imported goods shall bear an indication of the country of origin, or, in the alternative, some such words as 'Imported,' or 'Foreign," 'Dominion,' or 'Colonial.' We have, however, received evidence which appears to show that, in some trades at any rate, there is a consensus of opinion that the special marking of imported goods of the kind produced in the trade would be to the advantage not only of the particular trade but of the community generally. They then mention that this is especially so in the cases where there is deliberate imitation of British goods in their form or get-up, and they state:— We think that such views cannot be ignored; but it is not possible without a particular enquiry in each special case to say in what cases compulsory marking would be to the public interest. On consideration, therefore, we recommend that when it has been established, after official inquiry, that it is in the public interest that the local origin of the goods should be indicated in the case of any particular description or class of ported goods, the Board of Trade should have powers to deal with the question by Order. They point out that an official Inquiry is to be made and that that official Inquiry should state what is to be done; and they add that in the course of the official Inquiry, ample opportunity should be given to all parties interested or affected to put forward arguments and evidence for or against the proposed Order, and particular attention should be directed to the question whether the goods are manufactured, produced or sold under circumstances constituting unfair competition. Now, the point of unfair competition is left out of the Bill as it stands. The question of false impression is dealt with, but of the main and principal point of this Committee's Report—namely, unfair competition—no notice is taken. The manufacturers and the National Union of Manufacturers, with their many affiliated bodies, are pressing for this Amendment, on the ground that the Committee represented manufacturers, traders, consumers, lawyers and officials, and that of the fifteen members of the Committee one did not sign because he was never present, and the other fourteen were unanimous in proposing that these matters should be dealt with in the way which they suggested.

Instead of taking up this matter the Bill deals with only one question, and it leaves out the question of unfair competition. The question of unfair competition was pressed by the manufacturing interest very strongly, and was one of their chief points. The Report says that a desire was expressed to distinguish goods emanating from countries in which unfair labour conditions were prevalent, or in which unfair methods of competition are practised. The Committee went on, in the body of their Report, to suggest that after ample opportunities had been given of being heard, particular attention should be directed to the question whether goods were manufactured, produced or sold in circumstances constituting unfair competition, and the very first of their recommendations, which is as to compulsory marking, says that The Board of Trade should have power to make an Order, after official inquiry has shown that such an Order would be to the public interest, requiring indications of origin (either specific or general) to be given in the case of any particular kind, description or class of imported goods. They then go on to say— In the course of the Inquiry particular attention should be directed to the question whether the goods are manufactured, prod need or sold under circumstances constituting unfair competition. In the next clause they refer to the question of cases where a false belief or false impression is produced. Consequently, from this Bill, the first main recommendation of the Committee, and also the point alluded to twice in the body of the Report, is omitted, and the other portions of the Committee's report alone are dealt with.

Possibly, the noble Lord in charge of the Bill will give some explanation of the reasons for this. It may be said that the words "public interest" are very wide in their nearing, but the Committee pointed out two main lines upon which public interest should be considered—namely, false impression, with which the Bill deals, and unfair competition, with which the Bill does not deal. It might also be said that this is a manufacturer's Amendment and that the nanufacturers are pressing for it. I have already mentioned that manufacturers were upon the Committee, but so also were other interests, and the Committee were unanimous in their suggestion. It cannot be said to be a manufacturers' or producers' Amendment, any more than it is an Amendment of the traders or consumers. It may have been a compromise, but they came to that conclusion.

It might be argued that this power in the hands of the Board of Trade might give rise to more officials and cause greater expense. I doubt it, especially when compared with the interests connected with this matter. Certainly there would be an official Inquiry, but the Committee lay it down very emphatically that there would be ample opportunity for persons to be heard, and that all considerations should be taken into account. If this was so a few standard pages would probably lay down the lines upon which public interest was to be directed, and the two lines which the Report lays down are, as I have said, unfair competition and a false impression. In moving, as I now do, the omission of certain words and the insertion of others, I have indicated that, so far as this part of the Bill is supposed to be an endorsement of the Report of the Committee, it does not appear to come up to the Report of the Committee in the main point which the Committee emphasised.

Amendment moved— Page 1, lines 11 to 16, leave out from ("that") in line 11 to ("an") in line 16, and insert ("it is desirable in the public interest that").—(Lord Askwith.)

LORD STUART OF WORTLEY

I have been asked to support—or rather I was asked to move—an Amendment which verbally is scarcely distinguishable from the series of Amendments moved by the noble Lord, Lord Askwith. That request came in the first instance from the Cutlers' Company and the Chamber of Commerce at Sheffield, and is supported by well-known Labour leaders in that great community. It is further endorsed by the Association of British Chambers of Commerce, from whom I received a letter just before I came to the House.

There is no disguising the fact that this is an age-long contest between the interests of the manufacturer or producer on the one hand, and the merchant, distributor, or middleman on the other. It is to the interest of the merchant to draw his supplies from wherever he can get them, and to give no more indication to the ultimate consumer than he can manage to escape giving of the real and true origin of the goods. On the other hand, the interests of the producer, as I hope your Lordships will remember, is intimately tied up with the interests of the great working class who, for a weekly wage, produce with their own hands the goods which are destined for the acceptance of the consumer. The whole question is, therefore bound up with employment and unemployment. It must be manifest that under the guise of a specious appearance, of a careful avoiding of all differences, even if no actual delusive inscriptions are adopted, it is quite possible that the employment of large bodies of our population may be filched away from them, owing to the public's being induced to give an entirely undeserved preference to an article, possibly made of inferior material, which comes from abroad.

The Bill requires that the Board of Trade, before exercising its discretion, should find that there is, in fact, some specific creation of a false impression. I submit that if you limit the discretion of the Board of Trade in that way, you are practically inviting the difficulties which over and over again have been shown in experience to lead to negative and nugatory results. The difficulty is to produce some definite consumer who— say, for eighteenpence—has bought some small article, and has been, no doubt, deceived by getting an inferior thing. You cannot get that man to go to the Board of Trade and say he has been put under a false impression. It is like the question of proving somebody to have been annoyed in the street. Your laws have even failed of effect because of that requirement.

After the subject has been considered by a Departmental Committee which gave great industry to the investigation of this subject, and deliberately held that the weight of evidence bore in favour of the less restricted words adopted in my noble friend's Amendment, I think it is a little hard that the noble Lord in charge of the Bill should have said, in introducing it, that a compromise ought to be effected; in other words, that the defeated party before that Committee, notwithstanding that the weight of evidence was found to be against them, should be put exactly in the same position as if the evidence had been at least half-way in their favour. I submit that your Lordships would do well to follow my noble friend in this series of Amendments.

THE UNDER-SECRETARY OF STATE FOR AIR (LORD GORELL)

The noble Lord who has just spoken has justly said that this Amendment brings back an age-long contest. It is the whole purpose of the Bill so far as possible to avoid controversy on a matter of some difficulty and intricacy; and, in asking your Lordships to give a Second Reading to the Bill, I mentioned that this was one of the few particulars in the Bill where a departure had been made from the Report of the Committee. But I do not think, in spite of what has fallen from the two noble Lords, that it is a very substantial departure. It is true that, in their Report, the Committee used some phrases indicative of their interest in protecting the public against unfair competition. But, if one looks again at the section of the Report to which the noble Lord, Lord Askwith, drew particular attention—paragraph 6—one finds that what the Committee had especially in their minds was cases in which foreign goods deliberately imitated British goods in their form or get-up; and the whole purpose of this Bill is to prevent fraudulent imitation.

The Amendment, as proposed, would altogether widen and greatly change the whole scope of the Bill. It would take it away from the non-controversial ground and take it out of the purpose in view, which is stated to be that of protecting purchasers from deliberate fraud. It would further have the disadvantage—or, at any rate, many might think it a disadvantage—that it would place in the hands of the Board of Trade very wide powers, and we are familiar with criticism as to the demerits of bureaucracy. This would be a very deliberate instance of it. It is not a point which has failed to arouse the very keenest consideration. It has been thoroughly weighed, and the Government are not prepared, in a Bill of this noncontroversial character, so to widen the main clause as to bring it back to high controversy, and also to give it a protective flavour which it is not the purpose of the Bill to introduce. I am sorry I cannot accept the Amendment.

On Question, Amendment negatived.

LORD GORELL moved, in subsection (1), after "form" ["form, style, or finish"] to insert "get-up." The noble Lord said: This is really a drafting Amendment. When the Bill was originally drafted there was sonic doubt as to whether the word "getup" could be considered as sufficiently technical, but on further consideration it has been held that it has now established itself, that it is sufficiently understood, that no difficulty will arise in regard to it, and that it does carry out the wishes and recommendations of the Committee.

Amendment moved— Page 1, line 14, after ("form") insert ("getup").—(Lord Gorell.)

On Question, Amendment agreed to.

LORD ASKWITH had on the Paper three Amendments to subsection (2). The noble Lord said: The object of these Amendments is to obtain some certainty as to when the Order shall be made. The second Amendment is to provide that where the Board propose to take into consideration the question of making an Order under this section, they shall publish notice of their intention in the London Gazette and in such other manner as they think desirable, and shall proceed to make the Order within three months. As the Bill stands the words are "and shall not proceed to make the Order until the expiration of at least three months." Then, at the end of the clause, I propose to add this proviso— Provided that the Board limy, on cause being shown that such course is proper and just, postpone the operation of such order for a further period not exceeding two calendar months. That would give three months in the majority of cases and five months in special cases.

In ninety cases out of one hundred three months would be quite enough in which to come to a decision. But we have found, and I dare say we shall hear in the course of the day a great deal more about it, that delays have arisen under the Safeguarding of Industries Act. The essence of trade is security and certainty, and to have a matter hung up at the desire of a Government Department without any certainty as to when a decision shall be come to is very detrimental. It would be much better, I submit, to have a definite period within which a decision should be given, with a certain elasticity to enable the Board to prolong the period in difficult cases when they find that further persons may have to be heard because the subject is of grave importance.

Amendments moved—

Page 2, line 1, leave out ("not")

Page 2, lines 1 and 2, leave out ("until the expiration of at least") and insert ("within")

Page 2, line 7, at end insert ("Provided that the Board may, on cause being shown that such course is proper and just, postpone the operation of such order for a further period not exceeding two calendar month;").—(Lord Askwith.)

LORD GORELL

It is felt that three months is not a very long time in view of the possibly serious nature of an Order when made. If the noble Lord feels strongly on this point, I am prepared to consider it afresh and to see whether it would be possible to meet him on Report stage.

LORD ASKWITH

I shall be willing in those circumstances to withdraw the Amendments.

Amendments, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clauses 2 and 3 agreed to.

Clause 4 (Amendment of s. 16 of principal Act):

LORD GORELL moved, at the end of the clause, to insert the following new subsection— (3) In its application to this section the definition of 'trade mark' which is contained in this Act shall have effect as if for the words 'a mark which is by reason of user distinctive of the goods of the proprietor' there were substituted the words a mark which has in any legal proceedings been held to be by reason of user distinctive of the goods of the proprietor.'

The noble Lord said: This Amendment needs, perhaps, a word of explanation. It was put down in view of the Amendments standing in the name of my noble friend, Lord Emmott, and myself, to Clause 7. It was felt that under Clause 7 the definition of "trade mark," limited by the words now in the Bill, might operate unfairly, or to the hardship of certain common law marks. I think this applies mainly to Lancashire, though even apart from Lancashire there are many common law marks which are not registered and are yet distinctive. In our desire to meet the wishes of which Lord Emmott bad given notice, it was proposed to leave out the limitation in Clause 7, but it is felt that those words cannot be left entirely out of the whole Bill. It would be an impossible task for the Customs to undertake to be the deciders as to whether someone claiming an unregistered mark which had not been held to be his by legal proceedings was in fact entitled to it. Therefore, this Amendment has been proposed, which limits the application of those words purely to the importation of the goods. It does not take away any of the remedies, and they are still open to anyone feeling himself aggrieved if the goods are not in fact stopped by the Customs. It is an administrative clause to meet the difficulty which, it will be obvious to your Lordships, must arise at the Customs under the Bill as it stands.

Amendment moved— Page 6, line 29, at end insert the said new sub section.—(Lord Gorell.)

LORD EMMOTT

I only want to say that I have not had time to draw the attention of the Manchester Chamber of Commerce, which suggested to me the Amendment I have placed on the Paper, to the alteration of the noble Lord. I should like to have an opportunity of doing so before the Report stage.

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clauses 5 and 6 agreed to.

Clause 7:

Meaning of "trade mark" for purposes of principal Act.

7. For the purposes of the principal Act the expression "trade mark" means a mark which is used upon or in connection with goods for the purpose of indicating that they are the goods of the proprietor of the mark by virtue of manufacture, selection, certification, dealing with, or offering for sale, and which is either a registered trade mark within the meaning of the Trade Marks Act, 1905 to 1919, or a mark which has in any legal proceedings been held to be by reason of user distinctive of the goods of the proprietor.

LORD GORELL

The next Amendment standing in my name on the Paper is consequential upon that which your Lordships have just accepted.

Amendment moved— Page 7, line 31, after the first ("mark") insert ("except as otherwise provided in this Act").(Lord Goren.)

On Question, Amendment agreed to.

LORD GORELL

I think I have already explained, in speaking of the Amendment to Clause 4, the purpose of my next Amendment.

Amendment moved— Page 7, lines 37 and 38, leave out ("has in any legal proceedings been held to be") and insert ("is").—(Lord Gorell.)

LORD EMMOTT

I only want to thank the noble Lord for making this concession, because I am told there are a great many trade marks which have been termed distinctive by reason of their long and extensive user by the proprietor thereof, but have never formed the subject of legal proceedings.

On Question, Amendment agreed to.

LORD EMMOTT moved, towards the end of the clause, to leave out "the" ["the goods of the proprietor"] and insert "such." The noble Lord said: This Amendment is a mere verbal matter, and I leave it to the noble Lord in charge of the Bill to accept it or not.

Amendment moved— Page 7, line 39, leave out the first ("the") and insert ("such").—(Lord Emmott.)

LORD GORELL

I am prepared to accept this Amendment.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8:

Provision as to conventional or generic descriptions.

8. Where a trade description is generally and bona fide applied to any class or description of goods for the purpose of indicating that the goods are goods of a particular class or are manufactured by a particular method, it shall not be deemed to he a false trade description within the meaning of the principal Act:

Provided that where any such description as aforesaid is nevertheless calculated to mislead as to the place, district, or country in which the goods to which it is applied are actually made or produced, the goods shall be prohibited to be imported into the United Kingdom unless the description is accompanied by an indication of origin.

LORD GORELL moved to omit all words in the proviso after "made or produced, the" and to insert: "foregoing provision shall not have effect unless there is added to the description, in the case of imported goods, an indication of origin, and, in the case of any other goods, a qualifying statement adequate to prevent deception." The noble Lord said: This Amendment is to give effect more fully to the Report of the Committee to which reference has already been made. It was not intended that this clause should be limited only to imported goods arid, in the words on the Paper, an addition has been made bringing in other goods as well.

Amendment moved— Page 8, lines 10 to 13, leave out from ("the") in line 10 to the end of the clause, and insert the said words.—(Lord Gorell.)

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clauses 9 to 13 agreed to.

Clause 14:

Interpretation.

14.—(1) In this Act unless the context otherwise requires,—

The expression "the principal Act" means the Merchandise Marks Act, 1887:

The expression "the Board" means the Board of Trade:

The expression "indication of origin" in relation to any goods means, at the option of the owner of the goods or other person concerned in the giving of the indication, either an indication as to the country in which the goods were made or produced, or such indication that the goods were made or produced outside the United Kingdon or outside His Majesty's dominions or any part thereof as, in the ease of goods in respect of which an indication of origin is required by virtue of the provisions of an order made under this Act, may be prescribed by that order, and as, in the case of any other goods, may from time to time be prescribed by any general directions of the Board:

The expression "device" includes any emblem, badge, crest, armorial bearings or insignia:

The expression "the Gazette" means the London, Edinburgh and Belfast Gazettes.

LORD GORELL moved, in subsection (1), in the definition of "indication of origin," to leave out "at the option of the owner of the goods or other person concerned in the giving of the indication." The noble Lord said: This, strictly speaking, is a drafting Amendment. It will be obvious on consideration that a definition cannot be at the option of the owner or other person concerned. The words to be taken out do not affect the alternative in the Bill.

Amendment moved— Page 13, lines 8 to 10, leave out from ("means") in line 8 to ("either") in line 10, (Lord Gorell.)

On Question, Amendment agreed to.

Loran GORELL moved, in subsection (1), in the definition of "indication of origin," to leave out "indication that the goods were made or produced outside the United Kingdom or outside His Majesty's dominions or any part thereof," and insert "other qualifying statement." The noble Lord said: This Amendment slightly widens the definition, but I do not think I need say anything about it. It is in accordance with the Report of the Committee, and I think will generally commend itself.

Amendment moved— Page 13, lines 12 to 15, leave out from ("such") in line 12, to ("as") in line 15, and insert ("other qualifying statement").—(Lord Gorell.)

On Question, Amendment agreed to.

LORD GORELL moved, after the definition of "indication of origin," to insert: "The expression get-up' includes any covering, label, reel, or other thing in or with which the goods are sold or exposed, or had in possession for any purpose of sale." The noble Lord said: This Amendment is consequential on the Amendment your Lordships accepted to Clause 1. It brings the present Bill into harmony with Section 5 (1) (c) of the Act of 1887.

Amendment moved— Page 13, line 21, at end insert the said words.—(Lord Gorell.)

On Question, Amendment agreed to.

LORD ASKWITH moved, at the end of subsection (1), to insert: "The term 'goods' shall include goods imported into this country whether for sale therein or for use directly or indirectly as a means of advertisement." The noble Lord said: The trouble that arises in this matter is this. It is said that large quantities of articles used for advertisement purposes are at present imported bearing the names of a British firm. Under the provisions of the present Merchandise Marks Act the Commissioners of Customs state that it is their practice to allow delivery of such goods without any statement as to the country of manufacture, provided that the articles in question are intended solely for gratuitous distribution for advertising purposes. British manufacturers say: "We have had a case brought to our notice where the manager of a company purchased 10,000 pencils for advertisement purposes without knowing that they were of German manufacture. The result is undercutting of manufacturers in this country and consequent unemployment." Surely, in a case like that, the goods ought to be marked. When you get a gratuitous gift unmarked as an addition to a quantity of pencils or any other sort of bonus it ought to be known that it is of German or of foreign origin. I beg to move.

Amendment moved— Page 13, line 25, at end insert the said words.—(Lord Askwith.)

LORD GORELL

I am sorry I am not able to accept this Amendment. Its effect, I think, would be such as the noble Lord would not desire, and does not quite contemplate. Its effect would be felt in Clause 4, 1 (b). Were this Amendment to be accepted it would have the effect of preventing a practice of the Customs at the present day which is not one, I think, that anyone desires to prevent. That practice is to allow any goods which bear the name or trade mark of the manufacturer to come in without correction, provided they are consigned direct to such manufacturer and that they are not intended for resale. Let me give your Lordships an example. It is quite a common practice with wine merchants to import small ash trays and similar articles which are intended as advertisements, and bear the name of their own beer or spirits, or whatever the article may be. If this Amendment were accepted they would have to be marked, and one might have such a mark as "Bass's Ale, made in Germany" upon an ash tray. That would be a case where the marking would be actually a false marking. I do not think that any evil arises from the present custom. It is a frequent one, and it has been under consideration whether, if it were to be challenged, the Government would not have to insert in the Bill an Amendment in a direct contrary sense in order to make it clear that the Customs are within their power in so admitting these goods.

Amendment, by leave, withdrawn.

Clause 14, as amended, agreed to.

Clause 15 agreed to.

Schedules 1 and 2 agreed to.

LORD STUART OF WORTLEY

May I ask the noble Lord in charge of the Bill when he proposes to proceed with the Report stage? I think that something will have to be said on the Report, because Amendments have come in at a late period.

LORD GORELL

I propose, subject to the convenience of your Lordships, to take the Report stage this day week. I think that will give my noble friend, Lord Emmott, time.

LORD EMMOTT

I hope the noble Lord may defer it, if necessary.