We had a lot of discussion relevant and irrelevant about this amendment. I do not know that it is necessary that we should resume it again. If the Minister is not prepared to accept the amendment I will not press it.
Merchandise Marks Bill, 1931—Committee (Resumed—Amendment 6).
The Dáil went into Committee and resumed consideration of the following amendment:
Section 8: Before sub-section (3) to insert a new sub-section as follows:—
"(3) If after consideration of a report of the Commission in favour of making an order or orders asked for in the application in respect of goods of a particular class or description the Executive Council are not of opinion that it is desirable that imported goods of that description should bear an indication of origin, the Executive Council shall refer the question to the Dáil within the next subsequent twenty-one days on which the Dáil has sat after such report has been received by the Executive Council and if the Dáil passes a resolution directing the making of a restriction or sale order or a restriction or importation order, or both such orders in respect of goods of that description such order or orders shall forthwith be made by the Executive Council."
—(Seán F. Lemass.)
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9 (4).
"A restriction order made in relation to goods of a particular class or description may provide that such order shall, subject to such terms and conditions as may be stated in such order, extend to samples of such goods."
I move amendment 7:
In sub-section (4), page 6, line 56, to delete the word "may" and substitute the word "shall."
The sole purpose of this amendment is to provide that where a restriction order is made in respect of any class of goods it shall apply to samples of these goods imported. I have submitted it because I can see no reason why the samples should be excluded from the operation of the restriction order.
We adopted the course deliberately of leaving it to the Commission and to the Executive Council, to say whether or not a restriction order would apply to samples. We do not say "shall not ever" and we equally want to avoid having to say that they "shall" and it arises to a certain extent from considerations that have been argued in relation to this country and also to many others that have been argued outside the country. The economic organisation of the League of Nations have had their attention directed for many years past to what they consider to be certain unfair types of discrimination attached to goods in different ways. They attempted to clarify the situation and find out whether there are devices of a certain type and certain secret and hidden types of subsidy. They tried to clear the ground so as to get directly down to these things. In clearing the ground they ran up against this matter of samples and it has been the experience even of countries which are opposed to the economic policy that is favoured by the League of Nations in the main that generally speaking the imposing of handicaps upon samples is a thing which should not be done or at any rate, if done, that it should be confined within very narrow limits.
There is an expression of opinion on the part of the economic organisation of the League that travellers' samples in particular should be left outside whatever restrictions should be put upon goods for sale. We do not want to go to the point of saying that nowhere will there be a possibility that travellers' samples will be subjected to a restriction order. We take the midway course. If the Commissioners think there is likely to be any abuse of the travellers' samples, then they can say, "Very good, the restriction order will apply," but we want to leave them to the Executive Council's discretion, so that in the main we can meet the objection put up, that a rather indiscriminate and doubtful kind of procedure can be adopted with regard to the samples that may be brought in as such. We therefore take the midway course to leave it to the Commission to make the recommendation, and we leave it to the Executive Council to have the case presented as to whether or not the restriction order shall apply.
I was not thinking of the restrictions order being abused and of samples getting in in consequence. I was thinking of the inconvenience to traders. A trader may not be aware that a certain restriction order may be in force. If samples are offered to him by a commercial traveller which did not bear the indication of origin, which imported goods will be required to bear, it may not occur to him that they must be delivered bearing this indication of origin and that they may be of less value than he contemplated when inspecting the samples. If it is desired, for the convenience of commercial travellers, that certain privileges should be given or certain exemptions made, well and good. But I think these travellers should be required, when offering these goods for sale, to give verbal or other representations to the potential customer to the effect that this restriction order was in force, and that the goods on importation or when offered for sale must bear the indication of origin required by the order.
Would the Minister say also exactly how travellers' samples are to be identified? Are they to be labelled as such, or how are they to be brought in?
That again will depend upon the individual case, and I think there is no great difficulty in most cases in determining when goods are commercial travellers' samples or other samples.
There has been a delay in the past with regard to the Customs. I wonder if that could be obviated.
I do not think it is going to be obviated. At least, if Deputy Lemass's amendment is passed it is going to increase the delay, because it means that samples are to be labelled and subjected to the same order. Ordinarily speaking, samples can be identified easily enough by the manner in which they are brought in. On the precise point which Deputy Lemass raised he has to bear in mind that samples may be used as samples not merely in this country but in other countries, and it will be putting rather a burden on traders who are dealing here and elsewhere to ask them that certain samples when brought in must have attached to them certain marks of origin that will not be required in other countries. As to the point that traders ought to know, we take it, on the whole, that it is a trader's business to keep himself vigilant and active as to orders issued from time to time; and as to the orders issued, it is hardly right that restrictions should bear so heavily on certain traders' samples that the importers should have a warning; but that, I suggest to the Deputy, is rather a different point. If the Deputy at some other stage makes a suggestion for a provision, say, imposing upon commercial travellers who are coming here with samples that they should state to their would-be customers that certain marks are enforced on the goods for sale, we could consider it, but I think when the amendment is put down that the Deputy will see the difficulty.
I have difficulty in drafting an amendment. The simplest thing is to require that the goods will have the indication.
First, traders may be trading in other countries than here and may not have their goods subjected to a mark; and, secondly, there is a definite recommendation by the economic organisation of the League against the abuse of a mark on these goods, and precisely in relation to the marking of commercial travellers' samples. We want to keep as near that as possible. We have this halfway house, which is reasonable in all the circumstances.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.
(1) A restriction order shall not extend to blends or mixtures consisting of or containing goods to which such order applies unless such order expressly provides that it shall so extend.
(2) A restriction order shall not extend to samples of the goods to which such order applies unless such order expressly provides that it shall so extend.
(3) Where goods to which a restriction order applies form part of other goods to which a restriction order does not apply but so retain their original character that an indication of origin can reasonably be applied to them such order shall apply to such first mentioned goods as if they were separate from the goods of which they form part.
(4) A restriction on sale order shall not, unless the order provides that the goods to which such order applies shall bear an indication of origin at the time of exposure for sale wholesale, extend to the case of the exposure for sale wholesale by a person who is a wholesale dealer.
(5) Where a restriction order specifies several forms of indication of origin, references in such order and in this Act to an indication of origin in the form specified in such order shall be construed as referring to an indication of origin in any one of such forms.
I move amendment 8:
In sub-section (4), page 7, to delete the word "not," line 19, and to insert after the word "shall," line 20, the word "not."
Sub-section (4) provides that a restriction on sale order shall not apply to goods exposed for sale wholesale, unless that fact is definitely specified in the order. The amendment proposes to make it that the restriction order shall apply to goods offered for sale unless the contrary is specified. It is merely a matter of putting emphasis on it, and we think that it should be taken for granted that the restriction order would apply to goods offered for sale wholesale or retail, unless in special circumstances the Commission recommends, and the Executive Council decide to exempt goods offered wholesale from the operation of the order.
The Deputy says it is only a question of where one puts the emphasis. The clause sets forth that a restriction on sale order shall not, unless the order provides that the goods to which such order applies shall bear an indication of origin at the time of exposure for sale wholesale, extend to the case of the exposure for sale wholesale by a person who is a wholesale dealer.
We do think that the Commission would have before it an order; the Commission would have before it also the scope of the order. They would have to single out precisely whether it is to apply to the exposure for sale wholesale or whether it shall not, and we think it puts the burden upon them of considering the wholesaler's case. It puts more precisely on them to say that it shall not apply unless they say affirmatively that it shall. We think the Commission must, under the clause as it stands, face up definitely and say is this to extend to the wholesaler and that they must consider the wholesaler's case. We want to put the Commission up against two terms of reference. Is it to apply or is it not? It will not apply unless they say affirmatively that it shall. There is not much in it.
Amendment, by leave, withdrawn.
In connection with that matter, has the Minister borne in mind that there are certain shops in the country where the wholesale and retail business are done in the same premises, where the goods are intermixed and where the owner can say, "These are for wholesale only" and vice versa? It seems to me that in many cases a distinction between wholesale and retail will be very difficult to establish.
Those facts are recognised. We think it is for the Commission to bring those facts within their consideration and determine then whether in that case this is going to apply. I think that would be the normal thing to do in those circumstances.
Section 10 put and agreed to.
SECTION 11.
I move:
Before Section 11 to insert the following new section:—
"(1) If, where a restriction order has been made with respect to goods, representations are made to the Executive Council by persons appearing to have a substantial interest in the matter that the application of the provisions of such order to any particular class or description of those goods has caused or is likely to cause injury or hardship to those persons, or any of them, or make an application for the revocation of such order, the Executive Council may refer to the Commission for their consideration the question whether the restriction order should be amended in accordance with such representations or be revoked and the Commission shall report to the Executive Council on such question.
(2) When the Commission reports in favour of amending or revoking a restriction order the Executive Council may make an order amending or revoking (as the case may be) such restriction order."
This amendment is, in fact, consequential on what I have been saying previously in connection with this Bill. The Bill, as it stands, provides that applications for restriction orders must be made by persons representative of those engaged in the manufacture or sale of the goods concerned. They apply to the Executive Minister, and that Executive Minister may refer their application to the Commission, which then reports to the Executive Council, and upon their report the order is made. There is long and elaborate procedure set up to secure that restriction orders will be made. The Bill provides a very rapid method by which a restriction order may be amended or removed. We think that the procedure should be the reverse, that there should be every facility given to persons engaged in any trade or business in getting a restriction order put into operation, but that such restriction order should not be amended or revoked unless positive application was made by the persons affected, and that that application be reported on by the Commission. The purpose of this amendment is to provide that the procedure set forth here in this Bill will be deleted, and that, instead of an order being amended or revoked in which persons claiming to be affected by it or suffering hardship in consequence of it have made application, the Minister should have that application referred to, considered by, and reported on by the Merchandise Marks Commission. The Minister has, I think, undertaken to consider the suggestion that the Executive Council should have power of its own initiative to refer applications to the Commission, or to refer questions relating to the making of orders to the Commission. If that was accepted there would be a case for giving the Executive Council similar powers in respect of the revocation or amendment of the order. If we are going to have definite restrictions placed upon the manner in which orders are to be secured, we think that similar restrictions should, at least, operate upon the manner in which orders are revoked or amended.
I am assuming that, complementary to this amendment, both Sections 11 and 12 are wiped out.
Yes.
If that is so, I want to make a case for the retention of Section 11 as it stands. The Deputy has, I think, failed to appreciate the distinction we make between an exemption order when a restriction order has been made and the revocation or amendment of a restriction order. We intend the exemption order to be one made on behalf of individuals and in urgent cases. We want, in other words, first to safeguard against an order which has been made after consideration both by the Commission and the Executive Council, and just on the morrow of the making of the order people making a good case may be excluded by a certain small amendment of the order. If they are injured, and if it is not in the interests of the State that they should be injured, then we give the power to the Executive Council in these peculiar circumstances to make an exemption order, and having done that they must refer the exemption order that they decide to make to the Commission. The Commission afterwards may say, "Take out that exemption order," or they may otherwise amend their own restriction order previously passed, so as to get it into accord with the exemption. That is on the basis of urgency. Apart from that, completely distinct from it, we want to have revocation and amending of restriction orders, and those two things go through exactly the same procedure as the original restriction order. The revocation and amendment of restriction orders say that the Executive Council may revoke or amend a restriction order:
"Where the Executive Council proposes to revoke or amend a restriction order they shall, unless the proposed amendment has been referred to the Commission in pursuance of the immediately preceding section, first refer the question of the proposed revocation or amendment to the Commission, who shall report thereon. The Executive Council shall not revoke or amend a restriction order until they have considered the report of the Commission in relation to the proposed revocation or amendment."
We want to have the procedure with regard to the making of the original restriction order, and the amendment or revocation of that, on the same lines, but we do want in between to have some other power to meet an emergency case. Cases might suddenly arise, and we would have to act on the emergency, afterwards referring back to the Commission. Reference back might mean either the removal or going on with the old restriction order, the removal of the exemption order, or that the original restriction order should be amended in certain particulars. Although it is hard to say at this moment whether there will be any big number of cases coming under this section, we think it wise to have power there. It may happen in the interests of a trade that they want to have that particular power.
Did the Minister intend to give the power to make representation to persons outside the country? Does he not think that if he amended the third line of Section 11, by inserting "citizens of Saorstát Eireann" it would possibly save himself and the Commission a lot of trouble? If he leaves it as it stands he may have a lot of representations from people outside the country. I take it that "persons appearing to have a substantial interest" should be persons within the country.
That would definitely be the intention. I want to say that the particular gap that the Deputy has shown is blocked also in the original application for the restriction order. Certainly, with regard to Section 11, the intention was to have reference to persons in the country. I am not sure that the phrase "citizens of Saorstát Eireann" would meet the point. There might be people who would have substantial interests in the country, and whose trade would be of substantial interest to the nationals of the country, but who themselves would not be nationals or citizens. The point the Deputy has made is a good one, and that is a matter that will have to be attended to. The intention is clear.
As the Minister has accepted my amendment to Section 6, and proposes to give the Executive Council power to have orders made on its own initiative, I am not pressing this amendment.
Amendment, by leave, withdrawn.
Sections 11 and 12 agreed to.
Section 13 sets out: "...the Commission shall hear every person who so desires to be heard and appears to the Commission to be substantially interested in the subject matter of such inquiry and shall receive and consider any evidence tendered by such person." Does the Minister not consider that notice to appear as witness should be provided for? If the sitting of the Commission is public I can imagine quite a number of people appearing and demanding to be heard, perhaps on some frivolous pretext.
The Commission have power, under Section 3, to make regulations for proceedings before it. They can make their own regulations to govern procedure. "The Commission shall make regulations for the governance of its proceedings and may by such regulations make provision for... the persons to whom notice of the sittings of the Commission shall be given." Finally, they can make provision for "such matters as appear to the Commission to be necessary or expedient for the proper conduct of its business." That given the Commission power to make all the necessary regulations.
The regulations would not override a definite law.
If the Deputy means that the word "shall" in this is too precise, I would ask him to read what is in it: "When holding any such inquiry the Commission shall hear every person who so desires to be heard and appears to the Commission to be substantially interested in the subject matter of such inquiry...." The Commission have a discretion there. If a person is not entitled to be heard, they can rule him out. With regard to the point about people who may have substantial interests not being heard, it is quite conceivable that the Commission may get to a point where they would have heard as much evidence as they would require in order to cover the ground that ought to be covered, and it would not be necessary for them to hear further evidence even though it might be the evidence of people substantially interested. They might decide that they would not need any further evidence. I think, however, that cases of that sort would be so rare that it is scarcely necessary to consider them.
Section 13 agreed to.
With regard to Section 14, I am anxious to see some procedure established by which it would be possible to ensure that reports of the Commission which are favourable, but which are nevertheless rejected by the Executive Council, or which are unfavourable, can be discussed in the Dáil within Government time. I would like the Minister to consider the possibility of having some procedure laid down under which a Minister would be required to report the matter to the Dáil. It will not be always a question of fish barrels.
I really do not know what can be suggested. This section sets out that reports made by the Commission shall be laid upon the Tables of both Houses of the Oireachtas. The Deputy wants to add that, on a report being presented to the House, the Minister should put down a resolution approving or disapproving of it. Under a similar type of legislation in England I know that at least seventy orders have been issued; seventy orders that were accepted were issued. It is quite likely that there would be applications for at least forty or fifty orders here during the first six or nine months of this legislation. Supposing there were twelve such orders rejected, would it mean that there would be a dozen resolutions brought in by the Minister disapproving of the report of the Commission?
I am referring now to reports which favour the making of an order but which are rejected by the Executive Council. Then there is the report which is adverse to the making of an order and which may be approved by the Executive Council.
Why does the Deputy stop short there? Why not include reports that would be in favour of the making of an order and that would be accepted by the Executive Council? There might be quite a number of people in the Dáil anxious to discuss these just as well as the others. It really comes in the end to having every order laid before both Houses and a resolution tabled. The resolution must be tabled by the Minister in order to get it considered in Government time. That is what the Deputy is after.
Is it not the Deputy's point that if a private Deputy puts down a motion it should be discussed within reasonable time?
Exactly.
An arrangement has been made with regard to motions which must, to be effective, be considered within a period like twenty-one days.
But this is a different thing.
There could hardly be an amendment in a Bill, because this is rather a question of procedure.
That is so.
Sections 14 to 19, inclusive, agreed to.
SECTION 20.
(1) From and after the expiration of six months from the passing of this Act, it shall not be lawful for any person to sell or expose for sale, either retail or wholesale, or to distribute by way of advertisement (whether such advertisement relates to the goods distributed or to other goods), any imported goods to which there is applied, within the meaning of Section 5 of the Principal Act, either—
(a) the name of a manufacturer, trader, or dealer in Saorstát Eireann; or
(b) the trade mark of any such person as is mentioned in the foregoing paragraph, or a mark, emblem, or device so closely resembling such trade mark as to be calculated to deceive; or
(8) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such order is laid before it annulling such order such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.
I beg to move amendment 10:
Before Section 20 to insert a new section as follows:—
"(1) From and after the expiration of six months from the passing of this Act it shall not be lawful for any person to import into Saorstát Eireann any goods, or to sell or expose for sale either retail or wholesale or to distribute by way of advertisement (whether such advertisement relates to the goods distributed or to other goods) any imported goods, to which there is applied within the meaning of Section 5 of the Principal Act, either—
(a) the name of any place, district or area in Saorstát Eireann;
(b) any mark, description or sign which might reasonably be mistaken as indicating that such goods were produced or manufactured in Saorstát Eireann.
(2) The previous sub-section shall not apply to any goods bearing the name of any place, district or area in Saorstát Eireann which is a trade description lawfully and generally applied to such goods."
This amendment raises one of the major issues arising in this Bill. The Act provides that it shall not be lawful to sell or expose for sale imported goods bearing the name of a manufacturer, a trader or a dealer, the trade mark of such a person, or a trade mark calculated to deceive, or the name of any place, district or area in Saorstát Eireann unless such goods bear, at the same time, the indication of origin. The case I put to the Dáil on Second Reading, and that I want to repeat now, was that goods bearing the name of an Irish district, place or area, or a mark, design or emblem calculated to create the impression that the goods were of Irish origin, should not be imported at all, whether they bear an indication of origin or not.
Deputies are aware that the practice of attaching various types of names and marks to imported goods in order to deceive as to their place of origin is widespread. To some extent the provisions of the Bill requiring that the goods shall bear a clear indication of the place of origin will deal with the evil, but it is our view that it is much better to kill the practice altogether. Our opinion is that the goods coming here shall not be marked in any way likely to create a wrong impression as to the place of origin. We do not want to have Shamrock shovels or St. Patrick's flour, or anything of that nature, imported as in the past.
I am not suggesting that this amendment is very perfect, and that it is as good as anything the draftsman's office might produce. It possesses, however, the idea that I am anxious the Dáil will consider, and I would like to see it accepted in principle. On the Second Reading we discussed the difficulty likely to be created by the fact that certain classes of goods were described in the trade throughout the world by names originating in certain towns and districts here, such as Balbriggan hosiery, Limerick hams, and other names of that kind. I would like, if possible, that we should be able to prevent the use of these terms in respect of goods not produced in this country. Having examined the matter it is quite obvious there are considerable difficulties in that connection.
[An Leas-Cheann Comhairle took the Chair.]
As the Minister pointed out, there may be goods manufactured in this country and exported, bearing trade descriptions which originated in place names in other countries. I decided to include in the amendment that such names, if regular trade descriptions, would not come under the ban which I propose. The amendment is limited in effect to the use of the name of any place, district or area in Saorstát Eireann, or to any mark, description or sign which might reasonably be mistaken as indicating that such goods were manufactured here. That is that it was calculated to create the impression that the goods were produced in this country. I mentioned on the Second Reading the particular difficulty that I foresaw. We might require that the imports of flour, or shovels, or hams should bear an indication of the country of origin. I mentioned the possibility of the origin of the goods being printed on them in the Irish language. In the earlier parts of the Bill, in respect to goods to which restriction orders apply, the form of indication of origin was described to the Executive Council by the Merchandise Marks Commission.
In the earlier part of this Bill the form is what is prescribed here, and there is a definite indication of the country of origin, that is the country in which the goods were produced and manufactured. If that indication is given in the Irish language, and there is nothing in the Bill to prevent its being so given, then quite obviously that may have a bigger effect in deceiving the intended purchaser than a particular trade mark attached to the goods.
The best and simplest procedure to adopt in relation to such goods is that they should be definitely excluded from being imported into this country and that after six months such of them as are in the country should be debarred from being offered for sale.
I can quite see that it would be easy to apply this amendment in the case of any place, district or area in Saorstát Eireann, but there would be a considerable difficulty in applying it to any mark, description or sign. We cannot claim to have the sole use of the harp and we are not the only nation in the world that has round towers. There is only one Blarney tweed and there would be very little use in an advertiser suggesting that you could get goods as good as the Blarney goods. I can quite suggest the name of a place or district being applied, but let us take for instance "Slainte match" or the "Slainte boot." That would be Irish enough and yet I do not suggest that we should have the sole copyright in that word. I suggest that Deputy Lemass finish his amendment at (a) and not include "any mark, description or sign." That would be more acceptable and more workable.
This is the most difficult section in the Bill, and the amendment now proposed would definitely add to the difficulty of administration. I am not sure that it would carry us any further than what is in the Bill already. Remember that this Bill must be read with the Principal Act, the Merchandise Marks Act of 1887. It is very difficult to explain the complete repercussions of Section 20 plus the Act of 1887, and the precise way in which the provisions of that Act are disturbed by amendments or rather by groups of amendments which we have down here to Section 20 of the Bill, because we will have to take all of them together. I would like first of all to segregate these a little bit. One has in all this matter to pay attention to certain items and to keep them distinct and clear. One of the amendments is dealing with the selling of goods and another with the importing of goods. Then there is another dealing with advertising certain types of goods that are brought under whatever the heading is. Then there are classifications made here and in the section. Goods which bear the name of a place, and which according to the Bill bear the name of a manufacturer, trader or dealer in Saorstát Eireann; or the trade mark of any such person as is mentioned, or a device so closely resembling such trade mark as to be calculated to deceive, and finally, the name of any place, district or area in Saorstát Eireann.
Are these goods of whatever class to be allowed in provided there is in addition to what is mentioned a clear indication of outside origin, or are these things to be prohibited altogether? That is the main effect of Deputy Lemass's amendment. It weakens the Bill in its generic aspect. The thing we have to determine is whether certain goods are to be prohibited from being imported from another country altogether.
Not bearing the name of a trader.
There are two possible methods of procedure outlined —one is the prohibition of these goods coming in altogether; and, secondly, to say "We won't allow those goods to come in except they come in without misleading titles," and that they have also a clear indication of the country of origin. As regards advertisements, I propose now that, on a later Stage, Section 21 will be taken out of Part IV altogether. That is the section which relates to false representation in connection with goods not produced or manufactured here. It is a section which extends the representation to a representation direct or indirect, and either verbal or in writing. I propose to take that section out of Part IV and to put it in some other part of the Bill, so that it will have reference to the whole of the Bill and not to the special type of goods referred to in Section 20. The Deputy raises a point: Would it be a definite indication of the country in which goods were produced if the goods bearing the name of a place in the Free State had on them in Irish "Made in Poland"? I think that would depend upon the circumstances of the case. It would have to depend on whether a court would decide is that a definite indication and could it be brought within the phrase, "bearing in a conspicuous manner at the time of such sale, or exposing for sale, or distribution, a definite indication of the country in which such goods were produced or manufactured."
We may attend to that by an amendment of those words. I think it would be difficult in this country—and I should like to hear Deputy Buckley on the point—to say that you have to assume such an ignorance of the Irish language that an indication of origin in Irish would not be an indication of origin, whether a clear or definite indication or not. That is the difficulty we are in. Taking it away from the Irish altogether, supposing goods came in here bearing in French or in Italian an indication of origin. Is that a definite indication so as to bring us within the meaning of the section?
They are not official languages.
I doubt it very much. The Irish raises a difficulty peculiar to itself, and we shall have to get that attended to. Let us assume we have that out of the way, and that we have before us for determination either the prohibition of goods marked in a particular way or permission to allow them in, provided always that they are marked clearly and distinctly in some way that the people of the country will understand that they are of foreign origin. We can argue these points later. They are smaller points. The ground is cleared a little bit that way. I suggest that the amendment suggested by Deputy Lemass does not carry us any further than the proposal in the Bill would carry it when added to the 1887 Act. The 1887 Act must be taken in conjunction with this. There are four sections in that Act which bear upon the matter we are discussing— Section 2, 3, 16 and 18. To summarise these sections is difficult, but I want to put it generally this way. Under Sections 2 and 3 of the 1887 Act it is an offence which is punishable summarily or on indictment to sell "goods to which there is applied any description, statement or other indication, direct or indirect, which amounts to false representation." Let us apply it to this case.
Under Sections 2 and 3 it is wrong to sell goods which have applied to them any description which would falsely lead one to believe that the goods were manufactured in this country. Also under that Act, to get to the other word, the importation of such goods is forbidden, and in addition to that there is a definite prohibition of the importation of goods to which there is attached the name of any manufacturer or trader in this country unless that indication is accompanied by an indication of the country of origin. So that leaving this out of the question for the moment, it is wrong to apply a description, whether directly or indirectly applied, to goods which would falsely represent that these goods were manufactured in the Saorstát. That is one precise point. I am making the general portion of the Act concrete to this point. Under Section 16 of the 1887 Act one is forbidden to import goods where there is an indication of origin falsely given unless at the same time the goods bear the proper indication of the origin.
Section 18 of the 1887 Act deals with what Deputy Lemass has down as the generic use of this phrase. Deputy Lemass's amendment is that the previous sub-section shall not apply to any goods bearing the name of any place, district or area in Saorstát Eireann which is a trade description lawfully and generally applied to such goods. That weakens to a certain extent the 1887 Act, Section 18 of which is:
"Where, at the passing of this Act, a trade description is lawfully and generally applied to goods of a particular class, or manufactured by a particular method, to indicate the particular class or method of manufacture of such goods, the provisions of this Act with respect to false trade description shall not apply to such trade description when so applied: Provided that where such trade description includes the name of a place or country, and is calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, and the goods are not actually made or produced in that place or country, this section shall not apply unless there is added to the trade description, immediately before or after the name of that place or country, in an equally conspicuous manner with that name, the name of the place or country in which the goods were actually made or produced, with the statement that they were made or produced there."
That section is the section which I call the generic section of the 1887 Act, and that does not, as Deputy Lemass's amendment does, halt merely at the point of saying that the section shall not apply to goods bearing the name of any place, district or area in Saorstát Eireann, which is a trade description lawfully and generally applied to such goods. It says that if there is a name of a place or country, then you do not have certain penalties attaching, but you do have them attaching where there is the name of a place or a country applied, whether as a trade description or not, if it is calculated to deceive. It is legislation by reference, and this debate by reference is very difficult. If the sections are put together, I think the Deputy will agree that Section 2 of his amendment weakens the existing Act, because it would allow the application of a generic phrase "whether calculated to deceive or not." The Act of 1887 would not allow a place name to be used, even though it had got to the point of being considered generic if it was calculated to deceive. That is a useful safeguard, because a lot of these words are slipping gradually from place descriptions to generic or trade descriptions. It is a good thing to have our own courts as the authority as to whether or not a name has slipped from the point of being a local description to being a generic or trade description, and the amendment would weaken the effect of the 1887 Act. While excepting these points for later determination, and provided these things can be properly met, I think it is better to leave the law as it is under the 1887 Act, plus these provisions in the Bill rather than to accept the amendment, because it gives us power to punish for the sale of goods which have false descriptions applied to them under the 1887 Act. It gives power to prohibit the importation of goods which bear a place name, unless accompanied by the actual name of the country where the goods were made. If we remove the advertisement clause, as I propose to do, from this section to the general sections of the Bill, it gives us more complete power and more extensive power than we have with regard to verbal representation as to the country of origin. Under the 1887 Act, in addition to these provisions, we have a certain allowance with regard to the generic use of place names, but we do not allow the use of a place name on goods if at the same time it is calculated to mislead or deceive. So that we have not merely the passing over of a generic name, but the passing over of a generic name on the basis that it has gone so far from a local or trade description that it is no longer calculated to deceive.
I would therefore prefer to leave the Bill as it stands. I would not have it if the 1887 Act were not behind it, but the addition of the 1887 Act to this provision leaves us in a stronger position than the amendment would, even although the amendment is to be read in addition to the 1887 Act, because to my mind the amendment will weaken it in one particular, and where it overlaps I do not think it strengthens it. I throw out these as suggestions. I do not think this can be argued unless people have the Act and the provisions in the Bill and the amendment before them, and I suggest that, instead of putting this to a conclusion, the matter should be better considered between this and the Report Stage, and that the Deputy, after considering what I have said and reading his own amendment in the light of that, should let me know whether there is any real difference of a strengthening type between this amendment and what I have proposed, and then we can deal with it.
I am willing to let the matter stand over as suggested by the Minister. I was impressed by what he said, particularly in regard to sub-section (2) of the proposed amendment. I would like to make it clear, however, that the case to which Section 20 of the Act applies and the case to which the next amendment would apply are not quite the same. I do propose to exclude goods bearing the name of a trader or manufacturer or bearing the trade mark of a particular trader or manufacturer behind which there can be no other intention but that of deception. I mean, for instance, foreign goods bearing Irish place-names or marks such as harps or shamrocks or things of that kind—that is, applying a name or mark which is only put there for the purpose of deceiving as to the country of origin. It is only these classes of goods which should be excluded under the amendment. However, I am willing to leave the matter over until the Report Stage, and then have another discussion, if necessary, upon the matter.
Deputy Lemass wants to delete paragraph (c) in addition to inserting this one.
I take it that will be left over also.
I want to get the point clearly. Amendment 11 is to delete paragraph (c). I take it he is going to let Section 20 stand and delete paragraph (c), and that he is going to put in this as a new Section 21 with some sub-section in addition. The only thing additional is "any mark, description, or sign which might be reasonably mistaken as indicating that such goods were produced or manufactured in Saorstát Eireann." That is the only additional classification the Deputy gives. I want to mention that I think that is covered by Sections 2 and 3 of the Act of 1887 because I think these things can easily be brought under the description of a trade description which is calculated to deceive with regard to place of manufacture.
Are there any decided cases where a shamrock or round tower or colleen has been held to be a false indication of the country of origin?
There are two ways in which this has to be considered. One is as to decided cases—court proceedings. The other is the practice, for years, followed by the Revenue Commissioners. If the Deputy looks at the 1887 Act he will see there are two forms. One is to proceed summarily, or by indictment, against certain people who have got goods in. The other is to prohibit the importation. I can very definitely say that the Revenue Commissioners have clearly interpreted for years past Sections 2 and 3 of the 1887 Act as giving them all the power that they would have under paragraph (b) of the Deputy's amendment, while I cannot say much about decided cases because that has not come under my notice. But on the other side, with regard to the prevention of importation, the Revenue Commissioners have read undoubtedly Sections 2 and 3 of the Act as giving them the power they would be given under this amendment. It is clearly as extensive in their view. The other point has not been referred to previously. It is an addition made by the Deputy to the classifications I have, and I think is clearly met by Sections 2 and 3.
Amendments 10 and 11, by leave, withdrawn.
I move amendment 12:
Before sub-section (3) to insert a new sub-section as follows:—
"(3) Every order made by the Minister for Industry and Commerce under the next preceding sub-section shall be submitted to each House of the Oireachtas as soon as may be after it is made and shall not have effect until each House has by resolution approved the making of such order."
Under sub-section (2) the Minister for Industry and Commerce is empowered by order to "exempt from the provisions of this section goods of any particular class or description, or goods sold under any particular description, if he is satisfied that, having regard to the special circumstances of the trade in such goods, exemption is desirable, and would not materially prejudice public interests in Saorstát Eireann." I am proposing that any such order made by the Minister should not come into effect until approved of by the Dáil. There is a principle involved here that we discussed on the Traffic Bill some days ago, namely, that the Minister should not be empowered by order to amend legislation. It would appear that this sub-section would give the Minister power, by exempting certain classes of goods, to defeat, if he so desires, the intention of the Dáil. I recognise that under legislation of this kind considerable powers to proceed by way of order or regulation must be given to the Executive Minister. But in this instance I think a good case could be made to require that this Executive Minister should seek the sanction of the Dáil for his order. Because if the Dáil passes the Bill as it stands, it is the obvious intention of the Legislature that these restrictions should be imposed upon goods such as those described in paragraphs (a), (b) and (c) of sub-section (1) of this section. If the Minister could exempt these goods from the operation of the sub-section by order, then it would be in his power to amend the Act; and I do not think he should have that power.
I have only power to amend the Act if notice is given, because sub-section (8) requires that every order made under the section, and that applies to sub-section (2), shall be laid before each House of the Oireachtas. The only difference is that the Deputy wants that the exemption order shall not be legal until passed by the Dáil. I want the more normal thing, that I give notice of the order, and if within the next subsequent twenty-one days the House is sitting after the order is made it is annulled, then it ceases to have effect.
I do not know what use the Deputy imagines is going to be made of the exemption provision of sub-section (2), but quite clearly, what we had in mind was this: We have had representations made to us by two Departments with regard to containers for Irish produce, which they have so far found it impossible to get made in this country. We are faced with this difficulty. The containers are made outside. Can they be sold inside the country without an indication of their origin? If an indication of origin is required, how are we to discriminate when these are filled with Irish produce and sent out of the country? How are we to make it clear to the people purchasing elsewhere that the mark of origin attached to the container does not apply to the whole contents? It is with regard to these containers that we want power to make the exemption in these circumstances. We want it to be on the basis that they would not be exempt until a case is made. We have had a case actually made in a very strong way by the Department of Agriculture that for certain types of Irish produce sold in England it is impossible to get proper or indeed any container manufactured at home. They face us with the difficulty that under the Act we would insist upon the container being marked though it contained some sort of Irish produce. When that goes to the British market to be sold the discrimination may not be as they want it, and they asked us to take the power to exempt in these cases. Once we give the House notice, and the case can be raised, there is not going to be very much done even within the 21 days if the House is out of session. The order being laid upon the Table, the people who have got an exemption order will always have before them, even though the House is out of session during a lengthy summer adjournment, that the matter can be raised when the House resumes. People who are a little bit anxious about trade-marks, who are not sure that their case is sound, will not involve themselves in liability if they feel that the matter is to be subject to debate.
In the particular case mentioned, not merely is there no necessity to give this power, but the Minister has no option in the matter. These goods are excluded from the Bill under the provisions of sub-section (1), which refers to goods imported here for consignment by the vendor to somebody outside the country. They are excluded under the definition of "sale" contained in Section 1. The other point is merely a matter of safeguarding the constitutional principle, if you will. We had the point discussed on the Traffic Bill. The Minister for Local Government accepted our view and agreed to the amendment of the Bill in the manner we suggested—that where the regulations to be made were of such a nature that they might be regarded as an amendment of the statute those regulations should not come into force until approved of by the Dáil. In the case of other orders to be made by the Minister under this section and other sections of the Bill, we are agreeable to the procedure, which is the usual procedure, as the Minister says—that is, that they be tabled and come into force immediately, but that they can be annulled within twenty-one sitting days. In this particular case the order is of such importance that it might be tantamount to an amendment of the Act, and that is why we suggest that special procedure should be adopted and that the order should not come into force until approved by the Dáil. The Minister has referred to the period of twenty-one sitting days, but the twenty-one sitting days might cover a period of six months. If the Dáil adjourned for a period of five months, and the order was made at the beginning of that period, it could be in operation for a half-year, and its subsequent annulment by the Dáil would not render illegal anything done under it.
I want to point out two things. On the question of sitting days, the point is not that the order made under the section can be laid before the House within twenty-one sitting days. The order must be laid, as soon as may be after it is made, on the Table of the House, so that the House gets immediate notice of it. The point about the twenty-one sitting days involving a period of six months is not relevant to this argument. The point is: What is the earliest time within that period that Deputies could get on to the resolution?; that is evidently the longest period of adjournment there might be. This does not mean that they are prohibited from dealing with the order until twenty-one sitting days have passed.
Again, on that point, the Deputy speaks about constitutional matters. I do not see where any constitutional point is involved. There is a point of procedure involved. The procedure generally in this House has been—the placing of orders on the Table of the House, these orders to have effect until annulled. That is the form the order takes in nine cases out of ten in which orders are required or allowed to be made by the Minister. On the point as to the exclusion of these containers, the Deputy appears to think that these articles are excluded by the definition of "sale" in the definition section. I do not think he gets the point at all. I am presuming that the Deputy is going on the first sub-head of the definition—a sale of goods for consignment by the vendor to a person outside Saorstát Eireann. That does not apply. The container is ordered by a purchaser in the Free State. The goods are consigned to him. They are not consigned to a person outside Saorstát Eireann. They are coming in here and that person is getting that container because he wants to put inside it certain goods produced here which he is going to sell outside. He wants to get that container brought in here marked "Produced in the Irish Free State," that having reference to the contents and not to the container. That is the case in respect of which the Department of Agriculture have considerable difficulty. I do not feel equal to arguing the precise difficulties of the Department of Agriculture. They are more present to them than they are to my Department, but they were sufficiently grave to warrant our asking power to make this exemption order. These are the cases I want to cover and I do not see any other series of cases at present. We think that these are reasonable cases and that it is a reasonable way to meet the difficulty by making an exemption order. There will be nothing so fundamental as an amendment of the Act. The power sought is merely to meet these cases of goods produced here to be sold outside. As regards articles to be used in conjunction with goods produced here and to be sold here, they would probably come in without any mark that would bring them inside the section, and, therefore, the question would not arise. The only body of cases we see arising is of the container type of article and we think a case has been made for that. We think also that the case has been met by giving the Minister power to make an exemption order which the Dáil can annul afterwards if it so desires.
Does the Minister consider that butter boxes are a fair example of the goods we are talking about? He made two remarks which prompted me to intervene with a view to correcting him. He said that these were goods which were going outside the country. Butter boxes come here from Sweden. It is not that they cannot be made here, but the class of timber most suitable for preserving butter without giving it a certain taint is only found in Sweden. The custom has been to import butter boxes from Sweden. Some of these butter boxes are used for internal deliveries, and others go outside the country. These are articles that could be made in this country, and in many cases are. For the purpose of containing goods, they may be sent outside the country. I think butter boxes are a good example of the class of goods we are considering and that the Minister's point is reasonable.
What the Deputy said is very sound. Butter boxes can be made here, but I understand, according to the representations made by the Department, that there is some change of flavour or colour given to butter by these boxes, mainly because the wood has not got time to mature. In the end, the question will amount to this—whether you want to protect the butter container industry here, or whether you think it more important to preserve your export of butter. I think nobody will have any doubts on that question.
On the other point, I think there is power under the section as it stands to secure that there would not be use made of this section to allow in containers which were going to be used in the country and not outside. The Minister may exempt goods of any particular class or description, or goods sold under any particular description, if he is satisfied that having regard to the special circumstances of the trade in such goods, such exemption is desirable, and would not materially prejudice public interests in Saorstát Eireann. I think there is room to meet any distinction the Deputy wants to make there. If there is not, we could amend it.
Amendment, by leave, withdrawn.
Amendment 13 not moved.
I have not had an opportunity of referring to the Principal Act, and I would be glad if the Minister would say whether clause (a) "it shall not be lawful for any person to sell or expose for sale any imported goods to which there is applied within Section 5 the name of a manufacturer, trader, or dealer in Saorstát Eireann"—is elaborated in the Principal Act. Is provision made to meet the case of a name which could be held to be not the name of a manufacturer or trader in Saorstát Eireann, but would so resemble it that it would be mistaken by people in this country for the name of that trader? I am thinking of such an instance as Scott's jams, which are manufactured in the Saorstát. Would "Scot's" jams—spelt with one "t"—coming into this country be forbidden? Would it be unlawful to import "Maypole butter," the correct description of the Maypole Company being the Maypole Dairy Company? A multitude of things could be quoted. I would like to know if the Principal Act makes provision for guarding against such evasions of the law?
I want to quote other instances—traders who are not merely traders in this country, but who trade and manufacture outside the country, for instance: Burtons, the clothiers; the Dolcis Shoe Co., or Woolworth's. If goods were brought in bearing their names, are these goods required by this section to have an indication of the country of origin marked upon them, or can they come in bearing the name without indicating the country of origin?
The section that is referred to, Section 5 of the Principal Act, mainly deals with the word "applied." The application of marks to substances is defined in the Principal Act. The reference to Section 5 of the Principal Act in Section 20 (1) is mainly for the purpose of bringing in the limited manner in which the word "applied" is used. Section 5 says:—
A person shall be deemed to apply a trade mark or mark or trade description to goods who—
(a) applies it to the goods themselves; or
(b) applies it to any covering, label, reel, or other thing in or with which the goods are sold or exposed or had in possession for any purpose of sale, trade, or manufacture; or
(c) places, encloses, or annexes any goods which are sold or exposed or had in possession for any purpose of sale, trade, or manufacture, in, with, or to any covering, label, reel, or other thing to which a trade mark or trade description has been applied; or
(d) uses a trade mark or mark or trade description in any manner calculated to lead to the belief that the goods in connection with which it is used are designated or described by that trade mark or mark or trade description.
In the course of defining the word "applied," Section 5 of the Principal Act brings in the phrase, "trade mark or mark or trade description." The trade description is defined in Section 3 of the Principal Act. It means a number of things:
(a) as to the number, quantity, measure, gauge, or weight of any goods; or
(b) as to the place or country in which any goods were made or produced; or
(c) as to the mode of manufacturing or producing any goods; or
(d) as to the material of which any goods are composed; or
(e) as to any goods being the subject of an existing patent, privilege or copyright...
The expression "false trade description" means a trade description which is false in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, where that alteration makes the description false in a material respect.
It is quite possible that the elimination of a word from a well-known trade name, or even the elimination of a letter, might be brought in as a false trade description, by reason of the effacement or addition of something in the original mark. That is merely the definition. What a court would decide is another thing. The question that Deputy Lemass raised — dealing with Burton's suits or anything like those— would, I think, clearly come under the definition here of a false trade description. I think the Deputy had better apply the particular case that he has in mind to the definition in the Principal Act, and to raise the difficulty hereafter if it is still in his mind. It is rather a fine point that Deputy Moore raised, but I think the definition happens to cover it. If Deputies are going to consider these particular cases, they should read Sections 2 and 3 of the Principal Act together, and Sections 16 and 18 in conjunction with Section 20 of this Bill. It will be seen that the definitions are wide enough to include most of the types of false descriptions that would occur to anybody. There may be cases where possibly we would think of extending the provisions if necessary.
I think between now and the Report Stage the Minister should consider whether he could elaborate clause (a) in order to guard against such evasions as I have suggested. A multitude of them suggest themselves to one's imagination. If the case that I refer to could happen, that Scot's jams could be imported so long as the name was spelt with one "t," that would rather destroy the whole purpose of the Bill. I think that clause could be elaborated a good deal.
I started off by saying that Section 5 was brought into Section 20 mainly to bring in an extension of the term "applied." If Deputies want to get after what matters are covered, and to see whether the description is wide enough, or if it is too limited, they would have to go to Sections 2 and 3 of the Principal Act. I remember a case more or less on the lines of that which the Deputy spoke of, but I do not know how it went in the end. A case was brought against a manufacturer of a well-known brand of sardines, and on the first trial the decision was against the people who attempted to get over the law by dropping the final "e" and calling the goods "sardins." It emerged in the course of the appeal that neither brand of "sardines" were really sardines; that they were all bristling. Whether the attempt to get over the law was ultimately successful or not I cannot say. I think it is almost impossible to meet devices of this sort when one considers what one's imagination could run to. It is only a question of getting decided cases to see how far the law is a block to these subterfuges. There might be an extension of (a) of sub-section (1) of Section 20, but more likely it would be to some definition clause applying to the Act generally, because the point the Deputy is raising was not with regard to certain goods coming to the Free State with misleading descriptions of origin, but might be with regard to goods generally—that they should be prohibited or not allowed in unless there was a clear description of outside origin.
Section agreed to.
SECTION 21.
Question proposed: "That Section 21 stand part of the Bill."
I would like to know whether it is a false description to declare goods to be duty free, if, in fact, they are not. A company has established itself in Dublin recently, and is selling shoes described as "duty free." These shoes are imported, and duty was paid on them on importation. That sort of description might create the impression that the goods are of native manufacture, which are the only shoes that could be sold duty free. Is that "false description," and is it liable to involve those engaged in the practice in a prosecution under this section?
I cannot see how it would arise under Section 21. It would be very far removed from this section, which refers only to false representation in any material respect in connection with goods not produced or manufactured in Saorstát Eireann. It might be a mis-statement.
People may argue that they want to say that the customer is getting them as cheaply, which I think is the intention of the phrase, as if they had not paid duty. I do not think that would come under this section. I think that we would have to go back to the original Act. I doubt very much if it would come in here, because most descriptions, if false, are false in regard to the one particular country of origin. It would be very difficult indeed to establish that it is a false description. It is a point on which a solicitor might be consulted.
It either means that or that the shoes are being dumped. I think the practice might be considered in relation to the new powers the Government possess.
Question put and agreed to.
Sections 22 to 29, inclusive, agreed to.
SECTION 30.
Question proposed: "That Section 30 stand part of the Bill."
On the section I want to say that I am not satisfied that the machinery for the enforcement of the Act is adequate. In relation to foodstuffs, there is definite machinery provided. The local authority may send its inspectors to take samples and initiate prosecutions, but in relation to other classes of goods, the only thing suggested here is that the Minister may act as prosecutor in certain cases. I think the Minister should consider the advisability of taking powers to appoint some of his own officers as inspectors, to give them authority to take samples and to initiate prosecutions whenever they are satisfied that an infringement of the Act has taken place.
The section says that the Minister "may, subject to the prescribed conditions being complied with, undertake as prosecutor the prosecution of any offence under the Principal Act or any offence under this Act in cases appearing to him to affect the general interests of the country, or of a section of the community, or of a trade, or of an industry." Naturally I would have to rely on the use of whatever inspectors I have, who are to any degree itinerant, that they would investigate here and there, as it seemed to require, and report, but the prosecution would always have to lie at the suit of the Minister.
But the Minister could only prosecute in cases where it appeared to him that the general interests of the country are affected.
Or a section of the community, or of a trade or of an industry. I do not see why public servants should be asked to undertake prosecutions unless within the terms of the section. How can one say that people who are receiving emoluments from the taxpayers should act in any case where the matter does not appear to affect the general interests of the country, a section of the community, or of a trade or of an industry?
If I go into a shop and buy a suit of clothes, and I am told by the shopkeeper that the suit of clothes is of Irish manufacture, and subsequently I discover that the brand, "Made in England," is sewn into it, what can I do? Must I report the matter to the Minister or initiate a prosecution.
Report to the police. The Deputy becomes an informer for the purposes of the Act.
Would that be sufficient?
I think so, but I will look into it.
Is there not a possibility of overlapping between the Minister's Department and the local authority? Sub-section (1) of Section 19 provides that "every offence under this Act mentioned in this Part of the Act may, in so far as the same relates to any imported goods being foodstuffs, be prosecuted by or at the suit of an authorised local authority as prosecutor." In addition to the local authority, the Minister's inspectors will have power to bring a similar prosecution with regard to foodstuffs. That is to say, there will be two sets of people after the same thing.
Supposing there is a little bit of overlapping, I do not think that is going to matter much.
It does not seem desirable from the point of view of economy.
Question put and agreed to.
Sections 31 to 36, inclusive, agreed to.
Schedule and Title agreed to.
Report Stage ordered for Wednesday, 2nd December.
If the amendments are not circulated in time, the Report Stage will not be taken that day.