HL Deb 17 July 1986 vol 478 cc1075-6

4 Schedule 2, page 10, line 36, at end insert— 3A. In the proviso to subsection (1) of section 26 of that Act (removal from register and imposition of limitations on ground of non-use) for the words after "bona fide use" there shall be substituted the words "of the mark by the proprietor thereof for the time being in relation to—

  1. (i) goods of the same description, or
  2. (ii) services associated with those goods or goods of that description,

5 Page 13, line 22, at end insert— 8A. In paragraph 14(2)(b) of Schedule 1 to that Act (modifications of Trade Marks Act 1938 in application to service marks) for the words from "the words", in the first place where that phrase occurs, to "in relation to" there shall be substituted the words "paragraphs (i) and (ii) and the words following them there shall be substituted—".".

6 Page 13, line 23, leave out from "of to "there" in line 24 and insert "that Schedule".

7 Schedule 3, page 15, line 30, column 3, at end insert—

"In Schedule 2, paragraph 5 and the heading preceding it.

Lord Lucas of Chilworth

My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 4 to 7 en bloc. I accept that these amendments are complicated, but they are in fact essentially technical. Section 26 subsection (1) of the Trade Marks Act 1938 provides that any person may seek to have a trade mark removed from the register on the ground of non-use. The proviso to this subsection provides for a possible defence against such an action. Schedules 1 and 2 to the Trade Marks (Amendment) Act 1984 modify this proviso in its application to services and goods respectively. With hindsight we see that there is a gap in the modification in respect of goods. Paragraph 5 of Schedule 2 to the 1984 Act, fails to deal with the case in which a mark has not been used in relation to goods but is used in relation to services associated with those goods.

Paragraph 5 is therefore being repealed by Amendment No. 7 and is in turn replaced by Amendment No. 4. Amendment No. 5 then modifies the new provision for service marks, and Amendment No. 6 is consequential upon the insertion achieved by Amendment No. 5.

As I said at the outset, these amendments are essentially technical. They are rather long and complicated but they are an endeavour to make the new Act, the 1984 Act and the earlier Act clearer and beyond question. My Lords, I beg to move these amendments en bloc.

Moved, That this House do agree with the Commons in the said amendments.—(Lord Lucas of Chilworth.)

Lord Bruce of Donington

My Lords, the noble Lord can say it again: the amendments are, indeed, complicated and by the time one has eventually traced them through the various Acts to which they refer, one comes to the conclusion that the Government are right. Therefore, we agree with the amendments.

Lord Lloyd of Kilgerran

My Lords, I should like to repeat what the noble Lord, Lord Bruce of Donington, has said: these amendments are technical and complicated, but they are useful and will assist I think the jurisprudence in relation to intellectual property to be more closely affiliated to the needs and the atmosphere of the Treaty of Rome in relation to which we have to consider many of these international problems.

I should like to add, although perhaps it is irrelevant to these amendments, how much I welcome the co-operation that has existed in relation to improving the law concerning intellectual property in patents, designs and marks embodied in this Bill. I am very grateful for the courtesy and kindness shown to me by the noble Lord the Minister and for the way in which he has given an opportunity for co-operation between myself—having spent most of my adult life in this field—and some of his hard-working officials.

In conclusion, may I dare to say that I hope that the co-operation which has existed as regards this small Bill, and particularly in relation to the Treaty of Rome (in the context of which intellectual property must be considered) will continue in relation to the Bill which will be arising from further considerations of the White Paper on intellectual property and innovation in not the very near future, but in the next few months.

On Question, Motion agreed to.