PROTECTION OF NAMES OF POLITICAL PARTIES PROPOSAL TO PROTECT THE NAME OF A POLITICAL PARTY: WHETHER THE NAME OF A POLITICAL PARTY MAY BE REGISTERED AS A TRADE MARK: WHETHER LEGISLATION MAY ESTABLISH COPYRIGHT IN THE NAME OF A POLITICAL PARTY: COMMONWEALTH POWER TO LEGISLATE WITH RESPECT TO USE OF THE NAMES OF POLITICAL PARTIES IN CONNECTION WITH FEDERAL ELECTIONS
COPYRIGHT ACT 1912: PATENTS ACT 1901: TRADE MARKS ACT 1905
I refer to your letter dated 11th December, 1946, concerning the following resolution carried at a recent meeting of the Federal Executive:
Registration of word ‘Labor’.
Item 32. Victorian Executive—That the Federal Government be requested to amend the Patents Act to provide for the registration of the word ‘Labor’ for political use.
Messrs. Bryan and Stewart moved—That the matter be referred to the Prime Minister for investigation and necessary action. Motion carried.
I think that the reference in this resolution to the Patents Act is probably a slip; for as you know that Act is to provide for the protection of inventions. You will recollect however that some time ago I considered whether the object of a similar resolution passed by the Federal Conference of the Australian Labor Party could be achieved by an amendment of the Trade Marks Act, the Copyright Act or the Electoral Act.1
What I wrote on that occasion is I think equally applicable to the present matter, and I repeat its substance.
Dealing first with the Trade Marks Act, a trade mark is a mark distinguishing the goods of the owner of the mark from those of other persons. The name of a political party is clearly not such a mark. Any legislation providing for the registration of such a name as a trade mark would, in my opinion, meet the same fate as met the legislation made some thirty-five years ago to provide for the registration of Union labels, that is to say, the legislation would be declared by the High Court to be invalid.
With respect to the Copyright Act, it is established law that copyright cannot exist in a name or title. In my view, any legislation to establish copyright in the name of a political party would not be legislation with respect to ‘copyright’ as that word is used in the Constitution and would therefore be invalid.
The further question arises as to whether legislation of the kind under consideration could be supported as incidental to the power to legislation with respect to elections. In my opinion it is possible to frame valid legislation with respect to the use of the names of political parties in connexion with federal elections or the promotion of political parties and their organization so far as they are directed towards election to the Commonwealth Parliament. Such legislation would, to be valid, have to be general in character and protect against misuse the names not only of the Labor Party but of all political parties and groups.
[Vol. 37, p. 403]