Amendment No. 5, in the name of Deputy McDowell falls.
SECTION 10.
I have an open mind on this matter because the drafting suggested in the amendment may be superior to what is in the Bill. I will consider the matter before Report Stage.
Amendment No. 5 not moved.
Amendments Nos. 6 and 7 are related, but as Deputy McDowell is not present, amendment No. 6 falls. Therefore amendment No. 7 will have to be taken separately.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 12, subsection (6), lines 22 and 23, to delete "unless it appears to the Controller that there is a likelihood of confusion on the part of the public".
Members will note that the wording in this amendment is similar to that tabled by Deputy McDowell. The wording which Deputy McDowell and I wish to delete was drafted to prevent joint proprietors, who are required to use a mark jointly under section 25, from splitting the mark into two marks and then using it independently. The association argues that joint owners should be free to register a mark similar to the first mark in one of the owners' names if they so wish. I have accepted that argument and the wording can be deleted.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
NEW SECTION.
I move amendment No. 8:
In page 15, before section 12, but before line 1, to insert the following new section:
12.—(1) This section applies where on an application for the registration of a trade mark it appears to the Controller—
(a) that there is an earlier trade mark in relation to which any of 31 January 1996 the conditions set out in subsections (1) to (3) of section 10 obtains, or
(b) that there is an earlier right in relation to which the condition set out in section 10 (4) is satisfied,
but the applicant shows to the satisfaction of the Controller that there has been honest concurrent use of the trade mark for which registration is sought.
(2) In a case to which this section applies, the Controller shall not refuse the application by reason of the earlier trade mark or other earlier right unless objection on that ground is raised in opposition proceedings by the proprietor of that earlier trade mark or other earlier right.
(3) For the purposes of this section "honest concurrent use" means such use in the State, by the applicant or with his consent, as would formerly have amounted to honest concurrent use for the purposes of section 20 (2) of the Trade Marks Act, 1963.
(4) Nothing in this section affects—
(a) the refusal of registration on the grounds mentioned in section 8; or
(b) the making of an application for a declaration of invalidity under section 50 (2).”.
I have proposed a new section 12 on honest concurrent use which has the same text as the corresponding provision in the United Kingdom Act. We wish, therefore, to withdraw the amendment with leave to submit an improved text on Report Stage. The Patents Office has suggested some revisions which I would like to clear with the draftsman.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Sections 13 to 15, inclusive, agreed to.