(1) If any person who is not the holder of a licence to use the national mark shall use or apply the national mark or any colourable imitation thereof on, to, or in connection with any butter, or any other article in respect of which the national mark is registered in any register of trade marks or designs in Saorstát Eireann, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months, or to both such fine and such imprisonment.
(2) If any person who is the holder of a licence to use the national mark shall use or apply the national mark in contravention of the terms of such licence or of any regulation made under this Act or shall use or apply any colourable imitation of the national mark on, to, or in connection with any butter or any other article in respect of which the national mark is registered in any register of trade marks or designs in Saorstát Eireann, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months, or to both such fine and such imprisonment.
(3) The provisions of this section shall be in addition to and not in substitution for any other penalties or any remedies for the time being provided by law in relation to the infringement of trade marks or of the copyright in registered designs.
I move amendment 46:—
In sub-section (2), lines 52 to 54, to delete the words " in contravention of the terms of such licence or of any regulation made under this Act," and substitute therefor the word " fraudulently."
The point is that fraudulently using the mark would certainly justify imprisonment.
I could not possibly accept the amendment, and put ourselves in the position of having to prove fraud against every person who infringes the Regulations. Fraud is a legal term.
The Minister's point is that that portion of the Act would be unworkable, if he accepts the amendment. I think, in the case of a public house, you are not allowed to plead that you did not know people were on the premises.
It would be just as well to have a little consideration of this. The section deals with offences. If any person who is the holder of a licence uses the mark in connection with goods which are not entitled to the mark he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ï¿½50 or to imprisonment. The purpose of the amendment was to remove from the character of offences liable to imprisonment for six months the inadvertent application of the mark to butter which is not entitled to the mark. While I think there is reason in the Minister's statement that he will have to prove fraud and a deliberate intention of fraud, there is something to be said for the fact that a box, say, which has the mark, may accidentally get mixed up with other materials. That may not be done with any intention. Unless there is proof of intention I think that the penalty is heavy.
" Not exceeding "; there is no minimum penalty.
Deputy Johnson has expressed the idea which was in my mind.
The objection to this is that the insertion of this word would put the onus of proof on the department. We would have to prove in every case that they knowingly did this, that, or the other as against the regulations, whereas as the section is drafted the onus of proof that they did not do it knowingly is on the defendants. It would be impossible, I think, to administer the Bill otherwise. That is really the only difference between us. It is a very important difference. It is a difference, however, which is not affected by the point about penalties. If, in any case, the defendant can prove it was a mere accident the law is sufficiently elastic to meet the case and always has been. I suggest it would make it extremely difficult to administer the Bill if in every single case the officials of the Department of Agriculture had the onus of proving positively that the defendant knew what he was doing. If the onus were on the department it would make it extremely difficult to administer the Bill. As the Bill stands, it is open to the defendant to prove that this was a mere accident, that he did not do it knowingly and the law is sufficiently elastic to cover that.
I am satisfied. I thought, however, it was necessary to have the matter cleared up.
Amendment, by leave, withdrawn.
Amendment 47 not moved.
This section says " shall use or apply the national mark or any colourable imitation thereof." As a brewer I have had a good deal to do with trade marks, and I know that colour is not the only thing. They can go very close to colour by design.
It is not " imitation of colour " but " colourable imitation."
It is the colour of the design of your label.
" Colourable " means approximate, practically. It is not the colour.
You have not got my point yet. Instead of telling me what I do not intend, may I tell you what I am going to suggest? Shall use or apply any imitation of design, in colour or otherwise, I mean " in colour or otherwise." They may not use the colour of the national mark, but they may use too close a design, other than the colour. You can get over a label other than in pure colour.
My point was, and I think the Minister will agree and the Committee, perhaps, that there is no reference in the section, as it stands, to colour. " Colourable " does not mean coloured or approximate in colour. It means approximating in design, in colour, or the general effect it will produce—colourable in that sense.
I hope they will interpret it that way.
I hope it is. Those good people will be dodging that every day.
Question: " That Section 31 stand part of the Bill "—put and agreed to.
(1) Any person who tenders or supplies any dirty, contaminated, or stale milk or cream, or milk or cream which is contained in a dirty vessel, for use in a creamery or cream-separating station, or any place where milk or cream is used for the manufacture of any dairy produce for sale shall be guilty of an offence under this section and shall be punishable accordingly.
(2) Any person who accepts for use or uses in a creamery or cream-separating station, or any place where milk or cream is used for the manufacture of any dairy produce for sale, any dirty, contaminated, or stale milk or cream, or any milk or cream which is contained in a dirty vessel shall be guilty of an offence under this section and shall be punishable accordingly.
(3) Every person guilty of an offence under this section shall on summary conviction thereof be liable in the case of a first offence to a penalty not exceeding two pounds, in the case of a second offence to a penalty not exceeding five pounds, and in the case of a third or any subsequent offence to a penalty not exceeding ten pounds.
(4) The Minister may by order make regulations prescribing the methods of determining whether milk or cream is stale, or contaminated.
I beg to move:—
In sub-section (1) to insert after the word " who," line 3, the word " knowingly."
I think it is only right that this word should be inserted there, because the milk might be contaminated without the person who tendered the milk being aware of it. I have three amendments down which are practically the same.
The very same objection that I have already made will apply to this.
I think the Minister should accept the amendment.
You will have exactly the same difficulty then.
The only point I can see about the amendment is that possibly milk might be sent from a farmstead in a perfectly clean condition, and might become dirty owing to the careless handling of a servant. The master is probably liable for the servant's action, but the insertion of the word " knowingly " might possibly protect the farmer.
That would be altering a very fundamental conception of the law.
I am afraid it would alter a fundamental conception of the law.
I think it is only equity that the onus of proof should be on the prosecutor rather than the defendant.
Oh, no. If there is a breach of the law, the onus is on the person who is accused of that to prove that he was innocent.
I thought a man was innocent until he was proved guilty.
Granted it is known that he did the thing, the onus is on him surely to show that he unwittingly did it.
You want to keep the responsibility on the person who owned the milk and sent it out originally. You have to fix the responsibility on him, and he has to be accountable for his servant or whoever handled it.
If " knowingly " was inserted, and you take the straining of the milk and the steaming of the cans, I think it could be evaded all the time.
I agree. I see it would not work.
Amendment, by leave, withdrawn.
The next amendment is in Deputy Johnson's name, and I am afraid I will have to rule it out on the grounds that it is without the scope of the Bill. It is:
In sub-section (1), line 5, after the word " vessel " to insert the words " in the ordinary course of trade or."
That is without the scope of the Bill as presented to us on Second Reading. I have taken the Bill as a whole, and I do not think it comes within the scope of the Bill.
Before you rule finally upon this, may I say that the scope of the Bill is an " Act to make provision for the regulation of the manufacture, marketing, and export of dairy produce with a view to improving the general standard thereof," etc. This provision speaks of the tendering and supplying of dirty milk or cream, or milk or cream that is contained in a dirty vessel. My amendment seeks to make it read " in the ordinary course of trade or for use in a creamery." I submit that the scope of the Bill deals with the marketing, as well as the manufacture and export of dairy produce. We are driven back to ask ourselves, what is dairy produce? I submit if butter is dairy produce, cream is dairy produce. I further submit that milk is dairy produce, and that certainly cream is dairy produce, if butter is dairy produce. What is the dairy? What is, therefore, the produce of the dairy? We have not said " milk products." We have not said that this is a Bill to make provision for the regulation of the products of milk. It is the products of the dairy, which includes all the places and connections with the produce of milk. No doubt, there is a certain looseness in the meaning of the term " dairy." Dairy means to some people merely the shop in a town which sells milk and milk products. In some farming districts it means that part of the farm premises where the milk is kept and the butter is made. In other places it includes the byres. I submit the dairy produce, which this Bill deals with, is all those things connected with milk and milk products. If my reading is correct, or can be deemed to be considered reasonably correct, then we should not be debarred from discussing, within the scope of the Bill, the disposal of milk or cream. Supposing by any possibility my contention regarding milk is not accepted, how can it be said that butter or cheese is dairy produce and that cream is not dairy produce? I submit that on further consideration it must be held that milk and cream are dairy produce and, therefore, that the amendment should be accepted as in order.
Apart altogether from the title of the Bill, I am taking the Bill as it seems to me to stand. The amendment in Deputy Johnson's name might be in keeping with a Public Health Bill or a Food and Drugs Bill, but I must adhere to the ruling that it is not within the scope of this Bill. Dairy produce itself we have actually defined in the Bill, but I am not basing my decision on the fact that in the definition section we have defined dairy produce as including " any article of human food made wholly or mainly from milk or the products or by-products of milk." Deputy Johnson, if he is not satisfied, should put a similar amendment down on the Report Stage, but I feel compelled to rule this particular amendment out of order.
Amendment 50 not moved.
Before passing this section, I want to raise a question on the words " for sale " in line 7. The matter was raised at an earlier stage in connection with some other amendments, and the Minister made some suggestion that he would consider meeting the point by agreeing to delete the words " for sale " in the sub-section.
In Section 33, at the end of line 26.
I thought it was in reference to this section. I would urge that the section be not accepted unless the words " for sale " are deleted. I do that because I think it is confining the powers of the Minister too much—" any person who tenders or supplies any dirty, contaminated or stale milk or cream which is contained in a dirty vessel for use in a creamery or cream-separating station or any place where milk or cream is used for the manufacture of any dairy produce for sale shall be guilty of an offence under this section and shall be punished accordingly." I think that is limiting it entirely too much. I think it should be deemed to be an offence where any person tendered dirty milk to be used in the manufacture of dairy produce even for use in an infirmary, asylum or hotel, and if those two words are retained then it means that under this Bill at any rate any such institution may have any kind of a dairy and may produce any kind of dirty butter or contaminated butter, and any person might tender milk for use in a creamery provided it was not going to be sold in the market. I think that is limiting the operations too much, and we ought not to say it is only when goods are produced for sale under those unsatisfactory conditions that an offence is committed. If you retain those words, I suggest it will be quite possible in many cases for people to evade the law by saying this was not a sale and then proving it was not a sale. You will probably have to come to questions as to what is the definition of the word " for sale," and whether exchange is a sale. I do not see that there is any value in retaining those words in this section. They are limiting the powers of the Minister. They are not doing any good, and they are leaving the way open for the production of impure milk and the careless conduct of a dairy for those people who will produce milk for their own staffs, patients or institutions. I would ask the Minister to consider the deletion of those two words, because they are unnecessary and unwisely limit his powers.
I will consider it, but I would like to discuss it for the moment. Deputy Johnson has institutions such as an asylum or an infirmary in mind, county homes and that sort of thing, and butter can be made there, either their own make or from cream that is purchased. Supposing they purchase the milk. They make the butter from that milk. " Any person who tenders or supplies any dirty or stale milk or cream for use in any place where the milk is used for the manufacture of dairy produce for sale." Under the section we could not get at the supply of milk. If you take out " for sale," has an inspector a right to go into the farmer's house who was tendering the milk?
Inspection of farmers houses has nothing to do with this section. The act of tendering milk to a place where milk is to be used in the manufacture of dairy produce will be evidence quite irrespective of a farmer's house.
Yes, but it raises a number of questions in connection with others that we have to consider on report.
This does not touch tendering for any public institutions.
No, but Deputy Johnson suggests that you may bring public institutions and similar institutions within the ambit of the Bill.
I would be very glad if it did.
I would be very glad to get an explanation from the Minister of sub-section (1)—" any person who tenders or supplies any dirty or contaminated milk or cream for use in a creamery. Does not that imply that cream can be tendered to a school?
" or any place where milk or cream is used for the manufacture of any dairy produce."
You can tender cream to any place where milk is used. It is not merely creameries.
Does not it suggest for use in a creamery?
Or any other place used for the manufacture of dairy produce.
Amendment, by leave, withdrawn.
Question: " That Section 32 stand part of the Bill "—put and agreed to.