§ Order of the Day for the Third Reading read.
§ LORD TEMPLEMOREMy Lords, in moving that this Bill be read a third time, I desire to answer the question which was asked by the noble Lord, Lord Strabolgi, in Committee, as to why it was necessary in Clause 2 of the Bill to legislate for the Commonwealth of Australia. The position is that the provisions of the Geneva Convention of 1906, prohibiting the use of the Red Cross emblem, were given effect to in this country by the Geneva Convention Act, 1911. Section 1, subsection (5) of that Act provided that
this Act shall extend to His Majesty's possessions outside the United Kingdom, subject to such necessary adaptations as may be made by Order in Council.The necessary adaptations were made by Order in Council in 1913. Under the Statute of Westminster, 1931, Canada, the Union of South Africa, and the Irish Free State, have power to repeal the Geneva Convention Act, 1911. The Commonwealth of Australia and New Zealand could obtain a similar power by the adoption of the relevant sections of the Statute, which they have not so far done. In the circumstances the Commonwealth 776 of Australia take the view that they cannot legislate comprehensively in respect of the whole of Article 28 of the Geneva Red Cross Convention, 1929 (including the subject matter of the Geneva Convention Act, 1911) unless they are specifically empowered to do so; and they have ea pressed a desire for the inclusion of this clause. The Government of New Zealand, on the other hand, have intimated that they do not wish to be included. I hope that I have answered the question of the noble Lord, and I beg to move that the Bill be read a third time.
§ Moved, That the Bill be now read 3a.—(Lord Templemore.)
§ On Question, Bill read 3a.
§ Clause 1:
§ Prohibition of use of certain designs and words.
§ (3) Nothing in this section shall apply to a trade mark registered before the twenty-third day of December, nineteen hundred and thirty-one, and consisting of or containing any such design as is mentioned in paragraph (a) or paragraph (b) of subsection (1) of this section; and where a person is charged with using such a design for any purpose and it is proved that he used it otherwise than as or as part of a trade mark registered as aforesaid, it shall be a defence for him to prove—
- (a) that he lawfully used that design for that purpose before the said twenty-third day of December; or
- (b) in a case where he is charged with using the design upon goods, that the design had been applied to the goods before he acquired them by some other person who had manufactured or dealt with the goods in the course of trade, and that that other person lawfully used the design upon similar goods before the said twenty-third day of December.
§ LORD RANKEILLOUR moved, in subsection (3) of Clause 1, after the first "registered", to insert "or proved to the satisfaction of the Board of Trade to have been in use". The noble Lord said: My Lords, the Amendment in my name refers to a very small matter, but one of considerable importance to those affected. Clause 1 prohibits the use of a certain design or emblem that has been used for many years by a long established insurance company, and to forbid its use would cause great incon- 777 vanence and indeed loss to that company. It would be covered quite clearly if it had been registered under the terms of this clause, but as it has not been registered it is in danger. I understand that the view of the Board of Trade is that the words lower down than the point at which my Amendment comes in would in fact be a cover; but first of all the words relied upon are rather obscure, and in the second place, to use the words of. Lord Atkin in his argument on another Bill, the onus is placed on the defence. Surely it is far better to say explicitly from the first that if the Board of Trade recognises that it was used from a certain date no proceedings need follow, rather than to allow somebody to take up the point, it may be years ahead, and then force the insurance company to prove its case.
§
Amendment moved—
Page 2, line 22, after ("registered") insert ("or proved to the satisfaction of the Board of Trade to have been in use").—(Lord Rankeillour.)
§ LORD TEMPLEMOREMy Lords, in answer to my noble friend I think I can put his mind at rest. I think he is labouring under a misapprehension. The protection given in Clause 1, subsection (3) of the Bill is not limited to registered trade marks as I think the noble Lord imagines. It will be seen, if the noble Lord will look at the Bill, that this clause deals with two separate things. The first part gives complete protection provided that the Swiss Arms or an imitation thereof has been registered before the 23rd of December, 1931, and the second part deals with the use of the design otherwise than as a registered trade mark 778 registered before that day. In these cases there is a limited protection given by the subsection. It is laid down that it shall be a defence for the user to prove that he lawfully used that design before the 23rd December, 1931. I have been in communication with my honourable friend the Parliamentary Secretary to the Board of Trade, and with the Department. Careful consideration has been given to the matter, and I am authorised to say that the insurance company which the noble Lord has in mind would appear to be amply protected by the Bill. After that explanation I hope he will not press his Amendment.
§ LORD RANKEILLOURFor the reason which I have given, that the onus is put on the wrong party, I do not accept the noble Lord's answer as satisfactory, but I do not press the Amendment.
§ On Question, Amendment negatived.
§ Bill passed, and sent to the Commons.