Trade Marks (Amendment) Bill (Hansard, 1 May 1984)

§ Lord Campbell of Alloway
My Lords, I beg to move that this Bill be now read a second time. This Bill, notwithstanding a somewhat chequered career, still bears the imprint of its origins. It passed your Lordships' House; it was taken up from the Table in another place but it fell with the end of the Session. My friend Mr. Stephen Dorrell, kindly consented to adopt this orphan and to present it in another place under his parentage. It survived there a Second Reading, to undergo subsequent extensive surgery at the skilled hands of parliamentary counsel. After a relatively short period in intensive care, it now comes before your Lordships' House with what I understand to be the support of Her Majesty's Government.
It is, however, appropriate that this erstwhile orphan should at all events acknowledge is true parentage, for indeed it still reflects the spirit of your Lordships' House which brought it into existence. Without support from the noble Lord, Lord Mishcon, spokesman for Her Majesty's loyal Opposition, the noble Lord, Lord Lloyd of Kilgerran—I am delighted to see him in his place—the in-House expert on these affairs, and the noble and learned Lord, Lord Scarman, who is chairman of Sub-Committee E, this Bill would have been hard put, let us face it, to survive a Second Reading. Then there was also the acknowl-edgement which I wish to make to my noble friend Lord De La Warr, my noble friend Lord Portland and all the other noble Lords who spoke in our debates. This should be recorded as a fair testament to the vast measure of acknowledgement that is due.
The Bill in its present form still bases itself upon the provisions of the Trade Marks Act 1938, but instead of the needle and thread tacking technique adopted in the original Bill, using the Australian legislation as a precedent, a new parallel structure devised to accommodate service marks as such has been erected. This is achieved by two schedules, the first of which modifies the Act in its application to service marks and the second of which amends the Act in its application to trade marks of goods. In this, due account has been taken of the intangible nature of services, of the difference in legal status between unregistered trade 531 marks and service marks and also the need to provide for an adequate basis for cross-searching, to ensure that different proprietors cannot register confusingly similar marks bordering upon each other.
Although I am advised that the Bill in its original form would have been workable by the registry by the application of common sense means of implementation, this informal means of implementation has been reduced to statutory form in the Bill as it before your Lordships now. Furthermore, a series of cross-comparisons between services and goods at every level at which confusion might be caused if use of the same mark were permitted has been erected.
In addition, concepts, which though meaningful in relation to goods lack meaning in relation to services, have not only been altered but widened to accommo-date services. Furthermore, account has been taken that a service mark, although it may be physically attached to goods, makes a statement about an activity. In addition, problems arising not only where service marks are used but also at the place where they are offered for acceptance are recognised. Special provision is made to avoid conflict between the structure of this Bill and the Trade Marks Act 1938.
In all this the debt to parliamentary Counsel, a veritable master of his esoteric art, must be acknowledged, for by a painstaking and penetrative analysis, by sheer innovative genius, he has produced a Bill to protect our service industries which is far advanced beyond similar legislation anywhere else in the world. The vital economic significance of such a measure, and the need for the introduction of legislation in the United Kingdom, have already commended themselves to your Lordships in the original Bill. They now, as I understand it, commends themselves to Her Majesty's Government in the form of this Bill.
I shall be brief. This is a complex, technical subject. At Second Reading it is hardly appropriate to condescend to any detailed consideration of clauses or schedules, though if noble Lords have any points to raise, I have sought to inform myself in the hope that I might be able to answer them. But on the point of principles, perhaps it is fair to add that in another place considerable concern was expressed about possible postponement of implementation until 1st October 1987 under Clause 2(2) of the Bill, a concern reflected in many trade quarters and indeed, as it happens, in a letter dated 30th April from the Retail Consortium, delivered by hand to your Lordships' House.
The hope is that the spirit, which commended itself to your Lordships' House on consideration of the original Bill, now that it has been re-distilled to the greater potency of the essence, may still receive the same favourable reception as was the case on the previous occasion. My Lords, I beg to move.

§ Lord Mishcon
My Lords, I am sure the House will have appreciated the noble Lord's creation of metaphors. First of all we went from needle and thread to surgery, from surgery to intensive care, from intensive care to parenthood, and we ended up with the pathetic straits of some poor orphan. But, even 532 more than an appreciation of his creation of rather fine metaphors, we all owe him a debt for his persistence. One can remember the question that was originally put down in your Lordships' House in June 1982, when the noble Lord asked about the possibilities of legislation, bearing in mind that the Mathys Report was then some years old and nothing had been done about it and our service industries were lacking in this protection. From that point of view they were unfairly treated in regard to their competitors overseas.
Then my memory goes back, as the memories of many Members of your Lordships' House who have attended this Second Reading debate may go back, to the Bill which he presented to this House, the Second Reading of which took place in December 1982. On that occasion, and on the previous occasion, the Government—and I say this with great deference—had reasons for no legislation or delays in legislation. Those various reasons were put forward, and those of us who participated in the exchanges endeavoured to persuade the Government that the reasons they were advancing were not very substantial.
In this campaign, the noble Lord, Lord Campbell of Alloway, played such a prominent part that it is a pleasure to see the Bill before us in an amended and doubtless very much improved form. If something satisfactory occurs, it appears to me that beyond, in very courtesy, expressing thanks, there is no call for a long speech. As this is a very satisfactory outcome of the campaign in which we on these Benches were happy to join, I need do no more than say that we welcome the Second Reading of the Bill and hope that it will have the support of your Lordships' House.

§ Lord Lloyd of Kilgerran
My Lords, those who. like me, have spent decades dealing with the jurisprudence of intellectual property, particularly in relation to trade marks, greatly welcome the Bill. I, too, shall be brief. I join the noble Lord, Lord Mishcon, in congratulating the noble Lord, Lord Campbell of Alloway, on his persistence and on the artistic way in which he has presented his case. May I also congratulate the Government for supporting the Bill, as I understood the noble Lord, Lord Campbell of Alloway, to say is the case.
There has been a lacuna in the jurisprudence relating to trade marks by reason of the omission of the right to register service marks in the same way as ordinary trade marks. That lacuna has now been filled, and I hope that it will not be very long before the Bill becomes law.

§ The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead)
My Lords, when my noble friend Lord Campbell of Alloway introduced a similar measure to your Lordships' House in 1982 the Goverment felt that they could not support the Bill, and in characteristically courteous terms your Lordships have referred to that point this evening. However, over the past 12 months or so the Department of Trade and Industry has received many helpful submissions from companies, individuals and others on the need to move towards a registration system for service marks.
Ministers have had the opportunity to discuss the issue with those directly concerned. Another place had the advantage of the honourable Member. Mr. Stephen Dorrell introducing the Bill very ably: and this 533 evening we have had the advantage of hearing my noble friend Lord Campbell of Alloway put forward the case for the Bill succinctly, powerfully and with his customary clarity. As a result, I confirm that I am in the happy position of being able to say that the Government now support the Bill which is before the House.
Perhaps every cloud has a silver lining. As the noble Lord, Lord Mishcon, was good enough to say, the Bill which now, we hope, is proceeding towards the statute book is in fact in an amended and much improved form. Again, the noble Lord, Lord Campbell of Alloway, made that very clear in his generous remarks about parliamentary counsel, a matter upon which I believe we all would join with my noble friend.
May I make only one very brief point about timing? The Bill which is now before us specifies an operative date of 1st October 1987, or such earlier date as my right honourable friend the Secretary of State may by order appoint. This delay will allow the trade marks registry to bring the backlog of applications down to manageable proportions and to get itself into shape to take on this additional work. The fact that the registry will be in a position to do this is due not least to the fact that it has undergone a Rayner scrutiny and feels that it is able to take on this extra work. At the same time, I am advised that if the situation improves more rapidly than we can foresee at the moment we can bring the measure into effect earlier.
The effect of the Bill will be that the law which now applies to marks for goods will also apply to marks used for services provided in the course of business. The existing provisions of the Trade Marks Act will likewise be effective in denying registration to certain marks in certain circumstances. The classes of goods under which trade marks are registered are laid down in the Trade Marks Rules of 1938, as noble Lords will know better than I, and the Bill will necessitate the extension of the classes to take in services.
In conclusion, I simply say that, should the Bill be enacted, the amendment of the rules will be undertaken by the Department of Trade and Industry. It is my earnest hope that the Bill will indeed be enacted, for the Government very much welcome it.

§ Lord Campbell of Alloway
My Lords, no trite expressions of gratitude should be expressed to all noble Lords who have spoken. Although there have been only a few speakers, it is the quality of the noble Lords and the quality of the speeches which matter. If I may, I shall take one minute to thank each noble Lord for what he has said.
I am most sincerely grateful to the noble Lord, Lord Mishcon, not only for what he said but for the most charming way in which he said it. Of course, I shall take to heart his advice and in future will watch some, though not all of my metaphors. I am equally grateful to the noble Lord, Lord Lloyd of Kilgerran, not only for having found the use of some of my metaphors artistic but also for once again having given us the very real benefit—let us not underestimate it—of his expertise in this highly technical and complex subject.
Lastly, I am grateful to my noble friend Lord Belstead, and in particular to the Department of Trade, which has not only fostered a really fine production in this Bill but which has given me personally every assistance by way of explanation of 534 the new format so as to enable me to explain this matter to your Lordships.