Vol. 40 No. 20
I move amendment 1:
In page 4, Section 1 (4), to delete lines 12 and 13.
I move to take out one of the two-lettered paragraphs in the definition section (4), to which objection was raised on the Committee Stage. I am not moving to remove paragraph (d), because I think that there is a possibility of foreign material coming in here. There is the case of Jacob's biscuits, and if paragraph (d) were removed it might not be possible to use foreign flour in the manufacture of these biscuits.
I am not going to argue the point now, but it is clear that this provision relates only to goods which bear the name of a trade mark or a trader. How is it possible to have goods of that kind bearing that name restricted in any way if they are also required to bear the name of the country of origin? If it is possible to attach to these goods the trader's mark it should be also possible to attach an indication of origin. The sole purpose of this section is to make it necessary to have an indication of their origin.
If the Deputy will refer to Section 20, and if he takes the case of Jacob's biscuits, he will find that if his point were carried it would not be possible to have Jacob's biscuits made from imported flour. If it is not excluded by this definition that will be the position that you will have. The very same thing will happen with regard to jam made in this country from imported fruit. It would also apply to certain foodstuffs that are imported and cooked here. In the latter case it may be necessary to have an indication of the origin of the raw material.
I do not see that that is at all the case. The transformation of flour into biscuits is a substantial change and, if it is, then the definition would require to be attended to. The same applies to the other cases to which the Minister refers. This only applies to goods which have not undergone a substantial change.
We must get a definition of "imported goods," and we must get a definition of "sale." We must attend to both things. We are attending in this provision only to the point regarding "sale."
A sale of imported goods.
It may be. The question as to whether that comes under the heading of "imported goods" will depend on the other thing. There is the further point of "sale." Suppose there is no gap between the two things, then this adds nothing to it.
I move amendment 2:
In page 4, line 48, Section 3, to delete the words "the public" and substitute the words "any person."
Deputy Good raised a point in Committee that it might not be possible to exclude people who are interested parties, that they might not come under the heading of "the public." We propose to change the words "the public" and to use the words "any person." That will meet the case of persons who desire to give secret evidence.
I move amendment 3:
In page 5, Section 6, before sub-section (2) to insert a new sub-section as follows:—
"(2) The Executive Council may, if and whenever they think fit so to do, refer to the Commission the question whether it is desirable to make in respect of goods of a particular class or description—
(a) an order such as is mentioned in paragraph (a) of the foregoing sub-section of this section; or
(b) an order such as is mentioned in paragraph (b) of the foregoing sub-section of this section; or
(c) both such orders."
This amendment is designed to meet the point urged that the Executive Council should be enabled to refer of its own accord a question to the Commission.
I move amendment 4:—
In page 5, lines 52 and 53, Section 6 (2), to delete the words "not less than five pounds nor more than one hundred pounds."
I promised to meet the point that the question of minimum and maximum fee, or the question of charging a fee at all, should be left to the Commission, in consultation with the Minister for Finance. We are taking out the previously proposed minimum and maximum.
It is still clear that this sub-section, as amended, will require the Commission to charge some fee.
It may be nominal.
But there will have to be some fee charged?
Yes.
Would the Minister not put in the words "if any"?
Would that really help it? At present, the fee is to be such as the Commission, with the sanction of the Minister for Finance, shall fix. I do not think it would help to put in the words "if any." If the Commission made up its mind that the application was of a trifling nature, a shilling could be fixed as the fee.
I move amendment 5:—
In pages 5 and 6, to delete Section 7 and substitute the following section:—
7.—The Commission shall consider every application or question referred to it by an Executive Minister or the Executive Council (as the case may be) under the immediately preceding section and shall report to the Executive Council in respect of the following matters, that is to say:—
(a) the desirability or otherwise of making the order or orders to which such application or question refers;
(b) if the Commission report in favour of making any such order—
(i) the form or alternative forms of an indication of origin for use in relation to the goods to which such application or question relates;
(ii) the manner in which an indication of origin should be borne by such goods;
(iii) such other matters arising out of the application or question as the Commission may be requested to report on by such Executive Minister or the Executive Council (as the case may be).
I am removing Section 7 and reenacting it, so that it will read more simply. It really only means that wherever the word "application" occurs we are putting in the words "or question" to meet the new situation in which the Executive Council has power to refer a question to the Commission.
I move amendments 6 and 7:—
6. In page 10, Section 20 (1), to insert before paragraph (c) a new paragraph as follows:—
(c) a name so closely resembling the name of a manufacturer, trader, or dealer in Saorstát Eireann as to be calculated to deceive; or.
7. In page 10, Section 20 (1), to delete lines 3, 4, 5 and 6, and substitute the following: "unless such name, trade mark, mark, emblem, or device is accompanied, in a manner not less conspicuous than the manner in which such name, trade mark, mark, emblem, or device is so applied, by a definite indication of origin of the country in which such goods were produced or manufactured."
These amendments deal with the section which was the subject of most debate on Committee Stage. I promised to look into the points dealt with in the second amendment, and, on reconsideration, the point which we deal with in the first amendment occurred to us. It seemed, from reading the section as drafted, that there was a gap—the case in which there would be applied a name so closely resembling the name of a manufacturer, trader or dealer in Saorstát Eireann as to be calculated to deceive. We thought it better to put in, in addition to "the name of a manufacturer, trader or dealer in Saorstát Eireann,""a name so closely resembling the name of the manufacturer, trader or dealer...." We blocked up two loopholes in that portion of the section. The point was raised also that there might be considerable difficulty in determining, and that legal decision might be necessary to determine the precise meaning of the words "bear in a conspicuous manner at the time of such sale or exposing for sale or distribution a definite indication of the country...." At one time I evolved the suggestion of having the questions of "conspicuous manner" and "definite indication" referred to the Merchandise Marks Commission, but as the whole force of this section depends on its operating automatically, without appeal to the Merchandise Marks Commission, I came to the conclusion that by going back on that I would be weakening the section. I endeavoured to strengthen it by striking out these three lines and putting in the words in the amendment. The phrases have been strengthened somewhat. Otherwise I am prepared to leave Section 20 as it stands.
The amendment moved by the Minister is acceptable, but I regret that he could not see his way to accept the proposals made from these benches. I had considered putting in the amendment which I had down for Committee Stage, but I decided against it because it was not perfect in any respect, although it conveyed the idea that I had in mind. I have looked over the report of the discussion in the Official Report and I have read again the Principal Act to which the Minister referred on that occasion. While it is possible that the Minister's contention that that Act and this Bill, taken together, will give him the powers which I wish he should have, is correct, it is by no means clear. I should much prefer to have it stated definitely in the Bill, so that there could be no doubt that the importation of goods bearing devices intended to be misleading as to the origin of the goods would not be permitted. It may be that the Revenue Commissioners, in their interpretation of their powers under the original Act, have effectively stopped a number of cases, but to my knowledge it is possible to import goods bearing names or marks which are indicative of this country and which can be used for no other purpose than to mislead purchasers as to the origin of those goods. However, there is no use in going over the whole discussion again. The position is that such goods can come in subject to having the name of the country of origin affixed to them in a manner as conspicuous as the objectionable mark. That goes some distance, and I hope there will be no difficulty in enforcing the provision in the most rigorous way, because it should afford a very substantial degree of protection to certain manufacturers here who have found themselves handicapped considerably by the ingenious devices used in the past to pass off foreign goods as native products.
I move amendment 8:—
In page 10, before line 54, to insert the words:
"PART V.
False Representation in connection with Goods not Produced or Manufactured in Saorstát Eireann."
I referred to this on the Committee Stage. I want to take one section, 21, from the part of the Bill where it now stands and to make it of general application. I do so simply by changing the heading and putting in a new sub-head. Consequently all the later parts of the Bill will have to be moved up one.
