Opinion Number. 200

Subject

TRADE MARKS WHETHER COMMONWEALTH HAS POWER TO PROHIBIT SALE OF GOODS WITH FRAUDULENT TRADE MARKS

Key Legislation

CONSTITUTION, s. 51 (xviii), (xxxix) 200

Date
Client
The Minister for Trade and Customs

The Minister for Trade and Customs asks to be advised on the following question:

Is it within the powers of the Commonwealth Parliament to adopt legislation to prevent the sale, within the several States of the Commonwealth, of the class of goods which are referred to in Fraudulent Trade Marks Bill, now before Parliament?

I understand the question to mean: Is it within the power of the Commonwealth Parliament, in an Act prohibiting the application of fraudulent marks to goods, to forbid the sale within any part of the Commonwealth of goods to which such a mark is applied?

Assuming the Parliament has power to forbid any particular mark to be applied to goods, it has incidentally the power to forbid the sale of goods to which such mark is applied.

I express no opinion as to whether all the provisions of the Fraudulent Trade Marks Bill as the Bill stands at present, or those bearing on the power to forbid particular marks are within the powers of the Parliament.

[Vol. 4, p. 407]