I move amendment No. 4:
In page 12, between lines 10 and 11, to insert a new subsection as follows:
"(2) This section shall not apply to a trade mark which is shown to the satisfaction of the Controller to have been used in the State for a continuous period of not less than two years immediately preceding the date of the application."
This is a much more vital matter. For a considerable number of years Part B of the register has been used for the purpose of having a part of the register applicable to marks which had the benefit of user. Under the Bill the Minister is providing that Part B in future will not be as it has been hitherto but will be a second-class Part A. I suggest that is wholly undesirable. Where it has been tried elsewhere, it has proved to be wholly unsatisfactory. Let me make this confession. When the Minister and I were discussing this on Committee Stage, I did not understand the implications quite as clearly as I do now, and I venture to suggest that the Minister did not fully understand the implications then, either, because his "night and day" reference, when considered in the context of the report itself, could not possibly hold water in any circumstances.
The position is that for the past 44 years traders have had an opportunity under Part B of registering, without disclaimer, marks they had used for at least two years. The purpose of my amendment is to maintain the status quo in that respect. There have been no ill-effects whatever, except perhaps that Part B was not as useful as it might have been because it was limited entirely to the use of marks. The purpose of this section is to allow registration in Part B, without disclaimer in certain instances, but in respect of used marks, the disclaimer facility, or method, shall we say, would not be available. Registration in Part B of a composite trade mark does not give protection for the individual parts of the mark. It is nonsense, therefore, with all due respect, to say that by registering a mark that has the words “night and day” excluded as part of the mark, there was any attempt to register the words “night and day” as such. That might arise if the registration were in Part A. In Part B registrations, which do not have to have any essential particulars, it would be an invalid argument.
The Minister has referred me to Kerly. I would refer the Minister to the 8th edition, page 263. As pointed out by Mr. Justice Meredith, to whose judgment we referred each other the other day, the right conferred by registration in Part B is a continuing privilege. The alleged infringer has a complete defence if he can show that the use is not calculated to deceive. No claim to excessive use of the "night and day" words, which the Minister used on the last occasion, would stand for a moment and a disclaimer would be entirely superfluous.
To suggest that a person could arrogate to himself a proprietary interest in such words by including them in a Part B registration would not hold water. Apart from that, I suggest to the Minister that Section 16—it was Section 15 before it was amended— provides a full safeguard for the probable use of such words. I want to suggest to the Minister that it is essential in the interests of everyone— consumers, public, owners of trade marks and everybody else—that there should be some radical new thinking by the Controller in his approach to these matters.
The Minister has given certain information in reply to questions which, in my submission, disclose a sorry state of affairs. When we discussed the rejection of trade marks at an earlier stage, the Minister very properly made the point that what was done in one year might not be referable to that year at all, and accordingly he took three years together. On 5th of this month, in answer to Question 28 on the Order Paper, the Minister gave the average percentage of acceptance of applications for the registration of trade marks in each period. For the three years ending on 31st March, 1953, the percentage accepted was 97.2; in 1956, it was 87.6; in 1958, it was 75.4; in 1959, it was 76.2; in 1960, it was 77; in 1961, it was 69.7; and up to last March it was 60. In other words, the percentage of accepted applications has dropped in a three-year average period by one-third.
May I also refer the Minister to the number of hearings that have been held under the relevant section of the Act under which we are now operating? In 1953, there were three such hearings to deal with objections by the Controller of Trade Marks. In 1954, there were two; in 1955, none; in 1956, five; in 1957, four; in 1958, 13; in 1959, 18; in 1960, 16; and in 1961, 42. I have not got the figure for 1962, but I am told it will be of the same order.
I suggest seriously to the Minister that the combination of those two sets of figures, quite apart from the arguments on the section itself, disclose a state of mind that requires radically to be changed. I suggest further to the Minister that he can get abundant evidence and that if he considers it desirable, before this Bill goes to the Seanad, to have such evidence, he can receive a deputation of people concerned in this matter and they will provide him with abundant evidence of the great dissatisfaction that exists in relation to this method. He will be told that the use of the disclaimer provision in Part B of the Bill, where there has been two years' continuous user, will virtually mean that the system in relation to trade marks will be so unsatisfactory that nobody will be concerned with it and that ordinary commercial practice will be completely hamstrung.