MERCHANDISE MARKS BILL [H.L.] (Hansard, 5 February 1953)

LORD HAWKE
My Lords, I welcome this Bill, and I should like to congratulate the noble Lord, Lord Mancroft, on the agreeable way in which he has moved the Second Reading. The Bill, as I see it, serves a dual purpose: it protects the manufacturer from unfair competition and it protects the consumer from misleading descriptions. It does this by dual action. It adds to the trade description in Sections of the Act of 1887 the words which the noble Lord, Lord Lucas of Chilworth, has already read out. It also adds to the offence of false description that of misleading description, and these provisions combine to protect both the manufacturer and the consumer. Obviously, the proprietor of a brand of goods assailed by lower quality articles purporting to do the same work has protection and remedy under this Bill. He is also given a protection which he has not had so far with regard to misleading places of origin.
We have all heard stories—I have never known whether to believe them or not—to the effect that certain villages in Japan were christened with appropriate names, in order to mislead the home consumer as to the origin of goods made in those villages. So far as I am aware, that was not an offence under the old Act but will become an offence under this Bill. On the other hand, the consumer not only has the protection he gets through any protection given to a recognised trade mark but he is also protected against misleading claims made by the holder of the trade mark. At the moment, any protection available is pretty tortuous. I am no lawyer and I can well imagine the immense labyrinth of case law that must have been built up round the question of what is and what is not a false description. Noble Lords have given all sorts of cases. I add another hypothetical case. If there is a rat poison labelled in large letters, "Non-poisonous" 283 and then in very small letters "to human beings," the presumption is that it is harmless to domestic animals, though in fact it may be poisonous. What is that but a misleading description?
It is in the textile trade that the widest field opens up for misleading descriptions of various kinds. I cannot answer for the expensive articles of female apparel which seem familiar to my noble friend and to the noble Lord, Lord Lucas of Chilworth, but on a more humble plane the description "unshrinkable," like all other descriptions, is one of degree. It cannot be a scientifically ascertained fact. "Unshrinkable" depends upon the person who does the washing. "Fadelessness" depends on the time factor and the strength and intensity of the light. "Uncrushable" depends on who packs the clothes. "Mothproof" depends on the voracity of the moths. "Thornproof" depends on the length of the thorns. "Waterproof" is a pure matter of opinion. "Fast colours" depend on how the washing is carried out; and "showerproof" on what is a shower. All these things are matters of opinion. There is no scientific certitude about them. Therefore, the fact that the Bill leaves the onus of prosecution on the Board of Trade means a certain degree of danger to the liberty of the subject. It puts in the hands of the Executive a large amount of discretion.
Industry is rather alarmed in certain respects about the Bill, and we may have to devise some Amendments to meet legitimate criticism. One particular trade that is alarmed is the textile wool trade. For some reason which is unknown to me, over the course of years the wool textile trade has managed to get it established that the terms "woolen" and "worsted" are not trade descriptions, and that they do not denote that the goods are pure wool. But I have no great sympathy with them in this matter. To call a mixture of wool "woolen" denotes, to my simple mind, that it is made of wool; and if it is not made of wool I consider that I have been deceived. And I am all in favour of stopping people from deceiving the consumer. With regard to worsted, I admit that the case is not so strong. To me "worsted" still denotes pure wool, but not quite so strongly as "woollen." In the field of choice in the purchase of 284 woollen goods the consumer probably labours under as great a difficulty as in any other trade. There is nothing like wool for warmth and health. One has only to look in the London Tubes to realise that fact!
The chemists have been extraordinarily clever in making what they would call substitutes but what I am afraid I call adulterants. These substitutes are really completely indistinguishable from the original. Not long ago I held in one hand a lady's inner nether garment made of wool and in the other hand a duplicate made of some completely synthetic fibre. I closed my eyes and passed them from one hand to another, trying to distinguish which was wool and which was not; and I got it wrong. Some of these substitute fibres behave like wool, but undoubtedly some do not: some do not absorb perspiration, and so on. At the same time, they are hard-wearing, and nowadays they are put into many different sorts of cloth which people would prefer to fine pure wool. Our woollen industry has led the world for six hundred years, and in the use of these substitutes it is probably leading the world to-day. By all means let us use them, but let us tell the world we are using them, because a great deal of the world is conservative about these matters. We made our name for pure wool. We have had it for six hundred years. I feel certain that if we want to keep that name going we must be quite certain that we do not pretend that articles are pure wool when they contain these modern synthetic fibres. Therefore, it may be necessary, before this Bill is passed, to take some technical steps in the matter of the definition of "woolen" and "worsted."
I do not think the same point arises in the cotton industry. So far as I am aware, the cotton industry has never used a trade description which was obviously misleading. If, by chance, goods containing rayon were labelled as "pure cotton," I think that would be a simple false description, rather than misleading, and so would have been caught under the 1887 Act. There is a possibility in the label of "sea island cotton." As your Lordships are aware, there are far more goods sold to-day as "sea island cotton" than could ever be grown in the West Indies; but that is not a very serious offence, because "sea island "has come to mean merely fine, long staple cotton. 285 In Lord Lucas's trade, I wonder whether it would be misleading to describe cars as doing forty-five miles on a gallon of petrol, when in fact they do only thirty-five. That may well be misleading. I do not know whether it would also be misleading to describe a car as doing seventy miles an hour which does so only with a slightly inaccurate speedometer. At any rate, one could travel over other trades, but I mention textiles as I know something about that trade.
I support my noble friend Lord Balfour of Inchrye on the question of designs. I have had before now to initiate passing-off actions against the Japanese, when I was in the front of the trade war with Japan. I sometimes wish that economic pundits who tell us how we must become more efficient in order that we may compete with Japan could have had the experience that I have had. We cannot compete with Japan. Their whole production is on a completely different level. Their factories have been built at a quarter of the cost of ours, and their wages are one-tenth of ours—their standards are completely different. Now that they are knocking at the door of the General Agreement on Tariffs and Trade the position is most serious. But they are not always villains in the matter of imitation: I do not think they do it out of malice but only because they cannot do anything else. I have known only one original invention proceed from Japan. For the rest, in the past at all events, their factories could only slavishly imitate what the would-be importer of another country sent along and asked them to quote for. Now they are apparently going to join some sort of body, promising good behaviour in the future. I personally do not set great store by that assurance, because of their known characteristic that they are magnificent slavish imitators but not very good original producers. It is of the utmost importance that we try to get the provisions of this Bill extended throughout the Colonial Empire, at all events, and the Dominions, if possible; and there is hope in the Dominions, because in many cases they tend to imitate the trend of our legislation.
I should like to ask my noble friend Lord Mancroft this question. Would Section 3 of the Act of 1887, as it is, or as it is to be modified, include false descriptions given on the air, either on the radio or on television? That will be 286 important. We should secure that it does so, in view of the near advent of sponsored television. Reading the Act of 1887 and comparing it with this Bill, there is one thing one realises: we have progressed in many things over the sixty-five years, but we have not progressed in the clarity of our language. The Act of 1887 is framed in a totally different style of language. I would add, for full measure, that the Bill before your Lordships to-day contains a small misprint—and I wonder whether the Act of 1887 contained a misprint when it was presented to Parliament. On the final page, the Table of Statutes referred to, the Merchandise Marks Act, 1887, is given as "50 & 51 Vict. c. 26": it should be Chapter 28. That is a small point, but I feel that in 1887 they looked after these things rather more carefully. I may say, in conclusion, that this Bill will not stop the manufacture of anything now being manufactured: it will merely curb the imagination of the vendor's salesmanship. If, as a result of this Bill, any manufacturer should find that his trade diminishes, it can only be that he has been selling his goods under a false description. If it receives some attention in Committee, no honest man should really fear the Bill, and I support it.

§ LORD MANCROFT
My Lords, if I may have the permission of the House to speak again, I should like to take the opportunity, first, of thanking the noble Lord, Lord Lucas, and other noble Lords who have spoken for their friendly references to myself which are greatly appreciated; and secondly, of thanking them for the generous welcome they have given to this Bill. It is clear that I did not exaggerate when I said that it was a technical and difficult measure. No fewer than fifteen direct questions on the interpretation of the Bill have been put to me by noble Lords who have participated in this debate. I hope the noble Lord, Lord Balfour of Inchrye, will not accuse me of cowardice when I say that if he thinks that I, in the presence of the Lord Chancellor, am going to attempt to give fifteen snap decisions on one of the trickiest branches of the law of this country, he has "got another think coming." I will say this to him. It is not a matter for the individual always to decide, for this reason: I do not think the problems in these fifteen questions are quite as 287 difficult as is at first apparent. Of those fifteen questions, I myself would with confidence answer eleven immediately; two, I am certain, could be answered at once by those who know more about them than I do; and only one, the question of the model dress, is a "real tickler." That one, I know, has twice been before the Court of Appeal in different forms it has been before your Lordships' House once; before the American Courts fourteen times; it is at present before the South African Courts—and I now believe it is not legally possible to bring it before the French Courts.

§ LORD LUCAS OF CHILWORTH
May I put another question to the noble Lord, which would come under his description of "ticklish"? If he were out of this House now, looking more attractive to the female eye than he did before he had his operation, and some delightful female threw her arms around his neck and kissed him, and when he remonstrated with her said, "Don't worry; the manufacturer said my lipstick was kiss-proof," but it was not, would he be entitled to say that the description of that cosmetic was a misleading description? That could happen. What would the answer be?

LORD MANCR OFT
The answer would be that that would be an illicit "puff."

§ LORD BALFOUR OF INCHRYE
The noble Lord said that of the fifteen questions fourteen could be answered straight away. He did not say which way they could be answered. Does he mean that there was no case at all, or that in some of them there was a case and in some there was not?

§ LORD MANCROFT
I beg the noble Lord's pardon. I meant that, to my way of thinking, the answer would be either a pretty clear "Yea" or a pretty clear "Nay," and no great legal doubt would arise.

§ LORD BALFOUR OF INCHRYE
Which is it?

§ LORD MANCROFT
Half are one way, and half the other. I merely say that, as I jotted down the cases given to me, to my mind no great doubt arose as to certain of them, but that there did 288 arise in my mind great doubt over others. I know that the case of Lord Balfour of Inchrye's antique is one that has caused trouble in the past. As the noble Lord, Lord Hawke, rightly said, there is no absolute scale or standard in these matters. Ultimately, the courts must decide, and the noble Lord must not accuse me of cowardice if I tell him that that is the right answer in the end. But many of these questions are quite simple and need not worry the lawyers at all, because, after all, are we not paying a little too much attention to the actual enforcement of this Act? I apologise to the noble Lord, Lord Lucas, if I did not discuss the question of enforcement. I omitted it from my remarks only because there is no change at all in the enforcement, which has worked satisfactorily enough for something like fifty or sixty years. I quite agree that the Board of Trade have not initiated many prosecutions. I have not the figures at my fingertips, but I should imagine that it must be certainly under100, from what I can remember, but I do not want to be held to that figure in the history of this measure. Surely, however, the merit of the measure is not in the procedure or the frequency of enforcement, but in the fact that it sets a standard by which people can, in these particular matters, control their conduct. However, I will look carefully at the points which the noble Lord, Lord Lucas, and others have made, and make quite certain that the question of enforcement is as satisfactory as it can be.
I would beg the noble Lord, Lord Balfour, not to be over pessimistic and think that this Bill is going to provide a lawyers' paradise. I think it will do so no more than the previous Acts have done. On the question of consolidation, which the noble Lord, Lord Lucas, raised, I will, of course, look at that matter, too. I presume he is referring only to the possibility of consolidating the Merchandise Marks Act and not the sister Acts, the Copyrights, Registered Designs and Patents Acts, which in a way do impinge and touch upon this particular Act. That matter, again, I will look at but I am in no position to pledge myself.

§ LORD LUCAS OF CHILWORTH
The noble Lord is quite right. When this Bill is on the Statute Book there will be four Acts. Surely they will be consolidated.

§ LORD MANCROFT
I will certainly look at that point, but I foresee difficulties, because certain of the other Acts touching upon this subject cannot be consolidated. I am not sufficiently an expert in consolidation to know whether it can even be considered, if there are other Acts touching upon the subject which cannot be consolidated. But I will look at that matter very carefully and take advice.
The question of Japan came up on more than one occasion. It was mentioned by the noble Lord, Lord Balfour, and by my noble friend Lord Hawke. I am quite sure that what they pointed out is perfectly true: that this measure cannot affect Japanese goods made in Japan—counterfeited English goods—and sold in the Dominions, in the Colonies, or, more particularly, in America, unless some action such as the noble Lord, Lord Balfour, has suggested is put in train. That, of course, is quite outside the scope of this measure, but it is a matter which I know is causing some 290 concern, particularly in America, at the present moment.

§ LORD BALFOUR OF INCHRYE
Will the noble Lord consider it?

§ LORD MANCROFT
I will certainly consider the point which the noble Lord, Lord Balfour, has made. Indeed, I will consider carefully all the points which have been made, because I know that they have been made with a desire to improve this Bill. If I can be of any assistance to noble Lords before the Committee stage, I will certainly endeavour to be at their service, because I, as indeed I know they also, want to make this Bill as good a Bill as possible. With those few words, I thank your Lordships once again for your support of the measure.