HL Deb 26 January 1983 vol 438 cc328-36

8.3 p.m.

Lord Campbell of Alloway

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD HAYTER in the Chair.]

Clause 1 [Amendment of 1938 Act]:

On Question, Whether Clause 1 shall stand part of the Bill?

Earl De La Warr

I want to be very careful not to make a Second Reading type of speech although, really, as this is a one-clause Bill, it is a little difficult to resist the temptation. My noble friend Lord Campbell of Alloway and other noble Lords were extremely unhappy at Second Reading about what we regarded as the failure on the part of the Government to give adequate, or, indeed, any, reasons of substance as to why they could not support this Bill. One of the central points made in favour of the Bill lies in the fact that when EEC legislation comes in United Kingdom service companies will want to be able to oppose service trade marks from elsewhere; but, as matters stand, they will be unable to do so as they will not be on the register as existing holders. That is what the legislation says, and that, as I say, is one of the main reasons why anxiety exists and why many people in service industries feel that something needs to be done now.

I said we were unhappy about the answers we received from the Government, and no more so than on this particular point. It was dealt with fairly shortly by my noble friend, who said: I would suggest to your Lordships that this problem is not confined to service marks nor indeed is it confined to the United Kingdom. The Government will not stand idly by and allow our service industries to be at a disadvantage". [Official Report, 22/12/82, col. 1114.] Well, good! But that, I am bound to say, is just what we think the Government are doing. He went on: The Government have made constructive proposals for meeting this particular problem…". Good! But could we perhaps be told what they are? Then we might be able to judge better the substance of the Governments reasoning—if reasoning it be. I feel I must add.

We are told by the Government that these proposals are receiving a very large measure of support. Good! But from whom? We are also told that there is now a strong possibility that the draft proposals will be changed. Splendid! But to what? These matters, had they been answered in detail, would have given us some clue as to what was in the Government's mind. I cannot forbear to repeat the triumphant conclusion: Therefore, at this stage we cannot say that registration facilities for service marks must he provided before there is a Community system, because the final form of that Community system is still unclear". [col. 1115.] I see—or do I? I am not sure that that last sentence does not count as one of the least clear sentences in the Governments argument.

This is harsh stuff, because it is a very serious point and I have had to deal with it in rather a harsh way. But, believe me, I do not expect my noble friend to comment today other than to say, as I hope he will say, that he has taken my points on board and that, at a later stage in the Bill, he will seek to give the Government's arguments more precision and more thrust—indeed, perhaps to the point where the Government themselves may be convinced by what is said. If he will do that then I think that, at least, the degree to which we were dissatisfied at Second Reading will have been dealt with; and I hope that he in turn will deal sympathetically with what I now beg the Government to do.

8.10 p.m.

Lord Lloyd of Kilgerran

I cannot resist the temptation of having the pleasure of following the noble Earl, Lord De La Warr, in his remarks, but supplementing them to this extent. The Government in respect to the Bill—I shall not make a Second Reading speech—have said that the main reason why they reject the Bill is that the registrar for trade marks would not have the staff and he would be too busy. I should like to say as a prologue to the amendments that I shall move that the objects of my amendments, particularly Amendments Nos. 1 and 2 are directed to help the Government. I want to show the Government that these amendments of mine will assist them to overcome the main problem they have in mind in objecting so far to the Bill.

I am sure that the noble Lord, Lord Campbell of Alloway, will understand the point I am making. As I look round this crowded House I am afraid I do not find many persons who are as active as I have been for so many years in this exotic field of trade marks. My object this evening is to help the Government to overcome the only real case they have made against this Bill—that is, that the Comptroller-General of Patents, Designs and Trade Marks will be overworked. I say that that is nonsense.

Lord Campbell of Alloway

May I mention a brief matter, an unusual matter, of which I have given notice to my noble friend the Minister? I have to ask my noble friend the Minister whether he is aware that I have received today a copy of a letter sent to my noble friend Lord De La Warr by the deputy Director General of the CBI, dated 24th January, in which it is said: It was with some astonishment that we read in col. 1116 of the Hansard Report of the Second Reading debate on 22nd December last year that Lord Lyell felt that the Government have not found a pressing need"— that is, for service marks registration— on the part of industry".

Now, as I have said, I have given my noble friend the Minister notice of this letter, as indeed I had to, and, for the sake of the record, may I inform your Lordships that the letter came to me wholly unsolicited? Having said that, may I respectfully inquire whether my noble friend the Minister has any comment to make?

Lord Lyell

If I may, I will first thank my noble friend Lord Campbell for his kindness in giving me notice of the letter that he has, I understand, received. If he will be kind enough to let me have a copy of the letter, I shall see what answers I can give to my noble friend and, indeed, to the writers of the letter to my noble friend. I note that they quote me in col. 1116, and I think he mentioned and quoted my words on 22nd December in your Lordships' Official Report, I was found to have said this: We have not found a pressing need on the part of industry; we believe there is no pressing need from the Community".—[Official Report, 22/12/82: col. 1116] I then concluded my remarks.

That is certainly the Government's view, but I shall study the letter which my noble friend mentioned and hope we shall be able to give him a satisfactory answer. I have undertaken that I shall certainly reply to him and I hope that he will be happy with our reply.

So far as the noble Lord, Lord Lloyd of Kilgerran, is concerned, he made a fairly strong argument but I remind him and the Committee at the outset that this is not a Government Bill. This is a Bill which was moved very eloquently and has been supported all round your Lordships' House, but it is primarily a Bill moved at the behest of my noble friend. Certainly the noble Lord, Lord Lloyd, may make the point that he wishes to give assistance to the Government—

Lord Lloyd of Kilgerran


Lord Lyell

Well, the noble Lord says this, but I stand by everything that I said on 22nd December and, if the noble Lord does not believe that that is an adequate defence against the criticisms which we have received in the House, that is the noble Lord's opinion but I am afraid that the Government's case rests.

So far as my noble friend Lord De La Warr is concerned, he has said that in his opinion the reasons for our refusal to accept the Bill were inadequate, and he quoted me at some length in cols. 1114 and 1115 of the Official Report of 22nd December.

I hope that the Committee and my noble friends Lord De La Warr and Lord Campbell will accept that I think that we may be in danger of reviving the Second Reading debate in going over the arguments which were raised at Second Reading. However, I undertake that I will study very carefully the point that has been raised by my noble friend Lord De La Warr. If I may communicate with him by letter, I shall attempt to do that, since I am afraid that at the time of speaking this evening I do not know when the next stage of the Bill may take place in your Lordships' House.

My noble friend Lord De La Warr went on to mention the draft proposals. These were dealt with at considerable length on Monday. I think they are a little outside the scope of the Bill and certainly outside the scope of what we are discussing this evening. My noble friend Lord De La Warr thought there might be a chance of convincing me with his oratory tonight or at another stage. I can always suggest that he lives in hope but cannot guarantee any hope at this stage or in the future.

I am grateful for the sympathy that my noble friends have accorded to me. I am also aware of the sympathy of many parts of the industry towards my noble friend Lord Campbell and his Bill, but I cannot say anything further on Clause 1, or indeed, on the entire Bill, than I was able to say on 22nd December. But I will undertake to reply to my noble friend Lord Campbell and his letter. I will study everything that has been said by my noble friend Lord De La Warr. I hope that I can give him some reply either in writing or at a later stage.

Schedule [Amendments of Trade Marks Act 1938]:

8.19 p.m.

Lord Lloyd of Kilgerran moved Amendment No. 1:

Page 3, line 37, at end insert— (" . Section 40 is amended in subsection (1) by inserting a

new paragraph (f) as follows— (f) the Registrar shall on the appointed day of this Act amended by the Act of 1983 establish a Register of Trade Mark Agents and shall provide a means of qualification for an individual to be entered on such register." ").

The noble Lord said: With the leave of the Committee, I should like to speak also to Amendment No. 2. As I said in my prologue a few minutes ago, the object of the amendment is to help the Government in dealing with the one case that they have against the Bill: that it will overwork the registrar.

Secondly, I am going to describe what it is that this amendment sets out to do. It sets out to provide that the registrar should furnish a register of trade mark agents. At the present time, the United Kingdom is in a most anomalous position in the whole of the Community. Anybody can set up as a trade mark agent. He can represent applicants at hearings and go along to the Patent Office. That can lead to a lot of trouble and waste of time. I have personal knowledge of a hearing where a trade mark agent with no professional qualifications whatsoever has been presenting a case and the poor hearing officer has to deal with this man who has not the skill and the knowledge of case law, which most professional trade mark agents should be expected to have. If there was a register of trade mark agents that would reduce to some extent the work at the registry.

I referred to my prologue a few minutes ago. The noble Lord, Lord Lyell, said on one occasion (I have forgotten when) that it will require 50 more members of staff to deal with these matters. I am saying that is wrong for this reason: if you have service marks capable of being registered, the Government would comply with what is known as the Nice agreement, and that, I am instructed, would lead to only six more classes of goods in the trade marks registry.

They have to make searches. Of course, if the comptroller-general has to make searches in respect of goods and services marks that is quite a lot of work. In my view, which is a professional one supported by a lot of professionals in the field, if the comptroller-general were to arrange for a search to be made in regard to service marks, and then allow the matters in dispute arising from marks for goods to be dealt with at the opposition stage, it would not be necessary to have more than 10 more staff at the maximum. The 10 more staff would he paid for from the fees. It would be self-financing. So the question of cost to the Community and to the Government would be eliminated. It would need a certain amount more work for the comptroller-general and his staff.

I now withdraw the word "nonsense" that I mentioned earlier on. I said nonsense in regard to the number of staff which the Government have said will be required. I think, on further consideration, that the number of 50 is "an exaggeration".

Now I come to the activities of administration. Sir Derek Rayner, who soon will be Lord Rayner, wishes to transform the administration of the Patent Office from its horizontal matters to a vertical distribution in order to economise and rationalise the administration. If one is proceeding on those lines, it will also be a great help to have a register of trade mark agents. Therefore, Amendment No.1 says that the registrar on the appointed day, which may be a long time ahead perhaps, shall establish a register of trade mark agents and provide a means of qualification for an individual to be entered on such a register.

Another reason why the register is of importance and helpful to the Government in their dealings with the Economic Community and the future of the EEC trade marks is that under the provisional drafts for the European Economic Community trade mark, they require a register of trade mark agents for the whole Community and the registrars in the patent offices of all the members of the Community will be asked to submit names. It is obviously a great convenience to have in this country a register of trade mark agents who are competent for the purposes of dealing with the work before the United Kingdom Comptroller General of Patents. Therefore, on the grounds of trying to comply in advance with the EEC Community provisions a register is the natural thing to have.

I need not dwell for very long on Amendment No. 2. It is a technical amendment. It says that an individual shall not either alone or in partnership or as a co-director act as a trade mark agent unless he is on the register, and a body corporate shall not act in that way unless it is a registered trade mark agent. Then in subsection (3) there is the penalty that if anybody does not comply with the provisions of the new section he will be penalised in a certain way and proceedings may be taken within 12 months of the date of the offence, and so on. Subsection (5) of my amendment is a let out—if I may use those words—for the present members, solicitors, registered patent agents, and members of the Bar in certain circumstances who are acting in this field and still may continue in dealing with these trade mark matters without having to be included on the register.

Naturally, I am not going to force this amendment to a Division. It is in the nature of a probing amendment. I was not quite clear what the noble Lord, Lord Lyell, said; it maybe that he is not going to speak again in the debate. I thought he might be saying that he was going to listen to us all and not deal with it. I do not expect him at the short notice that he has had to give a definite answer with regard to this amendment tonight. I ask him whether he would be good enough to consider what I have said. Perhaps it will be of some advantage in the attitude of the Government to the Bill which the noble Lord, Lord Campbell of Alloway, has put forward.

8.28 p.m.

Lord Campbell of Alloway

As the noble Lord, Lord Lloyd of Kilgerran, most helpfully states, the object of this amendment is to help the Government and to provide a register of trade mark agents—both thoroughly reasonable and laudable proposals. But the Government do not wish to be helped. They have made that as plain as a pikestaff. The proposals as to registration I am afraid go outside the simple plain intendment. If one widens the intendment for this, then why not for that, and why not for the other?

The second amendment is allied to the concept of registration. I shall be brief but I must say that the Committee as always is much indebted to the noble Lord, Lord Lloyd of Kilgerran, for lending the benefit of his professional expertise, and in this instance in particular for drawing the attention of the Committee to the wishes of a very important sectional interest: namely, the Institute of Trade Mark Agents who in fact provided the draft of these amendments. But these amendments go outside the simple intendment of the Bill, which, as your Lordships know, is restricted to extending to services so far as is practicable the existing law relating to the registration of trade marks for goods.

As your Lordships know, this Bill is not concerned in any way with substantive amendments to existing law affecting the registration of trade marks for goods, and indeed, to be fair to the noble Lord, as I would always wish to be, he was the first to recognise that this Bill was not a suitable vehicle for carrying out the type of amendment which he has now proposed. On Second Reading on 22nd December 1982, at col. 1107, he said, rightly, that in due course amendments would be required to bring the Act up to date, but, this might he seen to later hut not during the consideration of this Bill. That was his view then: that is my view now.

For these reasons I hope that, as the noble Lord has kindly indicated, he will feel able to withdraw his amendment, having particular regard to the observations of the noble and learned Lord, Lord Scarman, made in volume 438, cols. 838, 939 and 111, and also, and very importantly, those made by the noble Lord, Lord Mishcon, at cols. 101 and 102, as to the need for this Bill in the form in which it stands.

Lord Lloyd of Kilgerran

May I say with great humility that I do not want the noble Lord, Lord Campbell of Alloway, to remind me of what I said on Second Reading, nor of what was said late at night by the noble and learned Lord, Lord Scarman, and other Members. He and I differ on this fundamental matter. The noble Lord feels that the Government are like an immovable rock. That is a fairly fair paraphrase of what he said. I am sorry that a distinguished member of the Conservative Party thinks that his Government are an inflexible monster of this kind—

Lord Campbell of Alloway

Will the noble Lord give way?

Lord Lloyd of Kilgerran


Lord Campbell of Alloway

I should like to this technical debate on a fairly even keel and really, with respect, that is going a bit far. I wonder whether the noble Lord—we are both members of the same profession, though of different political parties—can cool it a bit.

Lord Lloyd of Kilgerran

Thank you very much. I am delighted to have been interrupted in that most helpful way; but I understood that the noble Lord, Lord Campbell of Alloway—and we shall see what he said in Hansard tomorrow—implied, even though he may not have said it in words, that the Government had made up their minds and could not be moved.

I think that Governments, and particularly this Government, can be moved when matters are put to them by people who know what they are talking about in a particular field—and I pretend to know what I am talking about in this field at any rate—and are trying to be helpful. I do think that the Government will consider what I have said, and I am sure that they will not consider it with the closed mind which the noble Lord, Lord Campbell of Alloway, appeared to suggest that they would be bringing to this debate tonight. In these circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Campbell of Allowaymoved Amendment No. 3:

Page 3, line 41, at end insert— ("10. Section 68(1) is amended by inserting in the definition of "trade mark" the words "or services" after the word "goods" in both places where that word occurs.").

The noble Lord said: I beg to move this amendment. This is a formal amendment to cure a drafting defect which arises from the omission of "services" from the definition of "trade mark" in Section 68(1), the interpretation section of the Act of 1938. It is an error of omission to which I drew your Lordships' attention on Second Reading and it is an error of drafting. It is requisite because Clause 1 of the Bill, by reference to the Schedule, is designed, in so far as practicable, as I have said already, to put services on the same footing as goods for the purpose of trade mark registration in implementation of the Nice arrangement—to which the noble Lord has been good enough to refer—as revised first at Stockholm and later at Geneva. This is a purely formal amendment and I beg to move.

Lord Lloyd of Kilgerran

I have pleasure in supporting the noble Lord, Lord Campbell, in this amendment.

On Question, amendment agreed to.

Lord Lloyd of Kilgerran

had given notice of his intention to move Amendment No. 4:

Page 3, line 41. at end Insert— ("10. Section 68 is amended in subsection (1)—

  1. (a) in the definition of "limitations" by inserting the words "or services provided" after the words "traded in" and by inserting the words "or business" after the word "market": and
  2. (b) in the definition of "trade mark" by inserting the words "or services" after the word "goods" wherever that word occurs and by inserting the words "or business" after the words "course of trade".").

The noble Lord said: Paragraph (a) of this amendment is also intended to deal with an omission in regard to Section 68 concerning the definition of "limitation". I am sure that if there had been more chance of discussions prior to this Bill being lodged with the Comptroller-General of Patents and others, this error, or this omission, could have been avoided. Everywhere through the Bill it has been intended to put, as well as "goods", the words "or services". That is the whole object of the Bill. That is a very simple theme—that registration is possible for goods, as now, and also for services.

In regard to Section 68 of the Trade Marks Act 1938, there is a definition of the word "limitations". In the original of this Bill it says that: Limitations shall apply … as to use in relation to goods to be sold or otherwise traded in"— and the word "services" has not been brought in there. Therefore the object of this amendment is to say that, after the passage in the original 1938 Bill which reads, the goods to be sold or otherwise traded in", the words "or services provided" shall be added. That is just a minor amendment.

Then there is need for further clarification because there is a problem now, having regard to the House of Lords decision in the Aristoc v. Rvsta case as to whether "services" can be said to be "in the course of trade". This may be a somewhat technical point, and perhaps a semantic one, but, though you can trade in goods, can you have services in the course of trade as such? It is a fine point, and this amendment makes it quite clear that, if you insert the words "or business" after the word "trade", you will be all right and there will be no doubt.

This amendment therefore arises from the difficulties placed upon the business community throughout the British Commonwealth with which I have been concerned wherever you are dealing with services, where you are using contracts and you have to talk about trade marks in the course of trade. Where the marks are not registered, and where they apply not only to goods but also to services, and particularly to technical services, it is terribly important when you are dealing with a transfer of technology from one country to another. From a personal point of view, I have always said "in the course of trade or business", in order to make it perfectly clear so that nobody could take the technical point against you. Dealing with technical services, for instance, is not dealing with something in the course of trade. One usually associates trade with the transfer or exchange of goods and so on. That is what paragraph (a) is concerned with.

Paragraph (b) is largely covered by Amendment No. 3 of the noble Lord, Lord Campbell of Alloway, which the Committee has accepted. It is the same as that amendment, but coupled with the addition of the words "or business" after the words "course of trade". I do not propose to go into that in any detail. In the circumstances, with the leave of the committee, and having explained my position on this amendment, together with the fact that the amendment of the noble Lord, Lord Campbell of Alloway, has been accepted, I shall not move this amendment.

[Amendment No. 4 not moved.]

Schedule, as amended, agreed to.

Title agreed to.

House resumed: Bill reported with the amendment.