TRADE MARKS DISPUTE.

Otago Daily Times, Issue 18855, 7 May 1923, Page 4

TRADE MARKS DISPUTE.

SEQUEL TO SIMILARITY.

IMPORTANT ISSUES RAISED,

(Pek . United Pbess Association.) WELLINGTON, May 6, Important questions raised through a similarity of trade marks, including the contention that articles were not prohibited from coming into the country so long as they boro the name of the country of origin, ana an opposite contention that through a similarity of trade marks the rights of one company in New Zealand were being infringed by another company having the same trade mark but not registered in New Zealand, were argued before Mr E. Page, S.M., in the Magistrate’s Court yesterday. The proceedings were taken under section 259 of Customs Act, 1913,” for the condemnation of a Victor record, manufactured by the Victor Talking Machine Company, of America, and imported into New Zealand by Mr W. B. MTlveney (inspector of police) in his private capacity. The Collector of Customs had declared that the record in question should be forfeited for the reason that it infringed the rights in New Zealand held by the Gramophone Company. London, who were the manufacturers of the records known as “His Master’s Voice.’ On both the Victor and His Master's Voice records there is a trade mark depicting a dog listening to a gramophone, and on both there are also the words “His Master’s Voice.” The declaration of forfeiture by the • Collector of Customs was contested by Mr MTlveney, and therefore summonses were issued to the interested parties to argue the matter. Mr J. J. M’Gralh appeared for Mr MTlveney in opposition to the condemnation, Mr J. Prendeville (of the Crown Law Office) for the Collector of Customs, and Mr M. Myers, with him Mr H. F. O’Leary, for the Gramaphone Company, London. jjj -the course of his argument, Mr M Gram-'stated that the mark used on records was the trade mark of the Victa Talking Machine Company, U.S.A., anc the mark under which the company’s goods were sold in any part of the world. The statement oh the goods showed clearly, he contended that they were not the product of tha Gramaphone Company or of any P® r * of the British Empire. The goods, which had been forfeited without reference to (he court, were not of, themselves nor under any statute liable to forfeiture, and could bo- forfeited only after the conviction, of the court. Mr M’Grath pointed out that section 96 of “The Patents, Designs, end Trade Marks Act, 1908,” was identical with section 16 of “The Merchandise Marks Act, 1837,” which was inserted in accordance with the international convention for the protection of industrial property signed in Paris in 1883. Its object was to prohibit the importation of deceptively and spuriously marked goods into a country—in some cases absolutely and in others unless a qualifying mark indicating the country of origin wa« appended to the goods. It was to that provision that the familiar legend “Made in Germany” owed its origin. The Act did not affect marked goods, but it required those which bore, or were marked with, any trade description which would be false if unqualified to be to qualified- as not to mislead. Mr M’Grath contended further that if the goods bore the name of an English manufacturer or a name which was that of, or a colourable imitation of, a place in the United Kingdom or if they were marked with English words the name or were taken, unless qualified by, an express indication of the true country of origin, to be a description that the goods were of English origin. The trend of legislation was to deal with goods held or used for purposes of trade or manufacture, and not with goods purchased in a foreign country for private and individual use. Tne name of the maker and the country of origin, said Mr M’Grath, were clearly shown on the record, so that it could not be calculated to mislead a customer. The trade mark of the Victor record was prepared by the company in America, and showed that it had nothing whatever to do with the company here., “The whole business seems to he to prevent the public from being deceived," he remarked.

Mr Myers: Oh, -..n0. What about the rights? The trade mark is valuable property. Mr M'Grath: We have a perfect right to purchase these records in the United States of America and to bring them in as our own property for our own use, and the Collector of Customs must deliver them to us on payment of the Customs charges. He added that an intelligent purchaser could not be deceived. An additional protection. iof the public was that American records bore the registered U.S.A. , trade marks Victor or Victrola. It would be far-fetched, he considered, to ask tile public to believe that the two classes of records in question were one and the same thing. Mr Myers stated' that it was not only the public, who were interested. A trade mark was a very valuable species of property.. He submitted that there was no intention of the Legislature to provide that a trace mark registered in some foreign countrv should have priority to a similar trade mark registered in New Zealand. .. What the Legislature wanted to know was whether the goods were of actual British or of foreign manufacture. The logical conclusion of Mr M‘Grath’s argument was that a person in America without a trade mark could apply in America- the name or trade mark of a trader in Great Britain and that his goods wore to he admitted into New Zealand so long as they bore the name Mr M'Grath: We say that the Collector of Customs cannot stop them. After further argument the Magistrate intimated that he would take time to consider the matter. '