The Secretary to the Prime Minister's Department has requested advice as to whether there is any objection to the granting of permission to Messrs Miller Raynor and Haysom to register a design including the Commonwealth coat of arms, for buttons used by officers of the Commonwealth Government Line of Steamers.

Sub-section (2) of section 113 of the Trade Marks Act 1905-1919 provides as follows:

1. No person shall, without the authority of the King, or of some member of the Royal Family, or of the Governor-General, or of some Department of the Government of the Commonwealth (proof whereof shall lie upon the person accused), assume or use in connexion with any trade, business, calling, or profession the Arms of the Commonwealth or Arms so nearly resembling the Arms of the Commonwealth as to be likely to deceive.

   Penalty :
   Twenty pounds.

Section 12 of the Designs Act 1906-1912 provides as follows:

1. Copyright in a design means the exclusive right to apply the design, or authorize another person to apply the design, to the articles in respect of which it is registered.
2. Copyright shall subsist in every design which is registered under this Act.

Section 14 of the Designs Act provides as follows:

1. The author of a design shall be the first owner of the design, and shall be the person entitled to make application for the registration of the design.
2. If a design is made on behalf of any person for valuable consideration, the person on whose behalf the design is made shall be deemed to be the author of the design.

Section 15 provides as follows:

1. The person who is registered as the owner of a registered design shall be the owner of the copyright in the design.

In the present case an arrangement has been made between the Commonwealth Government Line of Steamers and Messrs Miller Raynor and Haysom for the manufacture by the latter of buttons and badges bearing the Commonwealth coat of arms for use by officers of the Line.

Whilst the Prime Minister's Department has power to authorise the use of the Commonwealth coat of arms by Messr Miller Raynor and Haysom, it is, I think, advisable that any such authority should be specifically limited to the manufacture of particular articles, or articles manufactured under a particular contract, or within a specified time, or that it should be limited in such manner as is thought desirable.

I do not think it is desirable that Messrs Miller Raynor and Haysom should be authorised to register the design in question. Registration would, in my opinion, give them the exclusive right to manufacture buttons and badges of that design and would thus give them a monopoly which might be harmful to the Commonwealth; and if the Commonwealth desired, at some future date, to negotiate with another manufacturer for the manufacture of the buttons, it might be precluded from doing so.

Apart from that aspect of the case, however, there may be some question as to whether they are the authors of the design within the meaning of section 14 of the Designs Act, and whether the design would be regarded as 'new and original' within the meaning of section 17 of the Designs Act. These are, of course, matters for the consideration of the Registrar of Designs.

In my opinion, permission should not be granted to Messrs Miller Raynor and Haysom to register the design and the Registrar of Designs should be informed that it is not desirable that the design should be registered.

[Vol. 19, p. 72]