Article 7 (bis) of the International Convention for the Protection of Industrial Pro-perty⁽¹⁾ (to which the Commonwealth has not yet adhered) is, in the English trans-lation, as follows:

The Contracting Countries undertake to allow the registration of and to protect trade marks belonging to associations the existence of which is not contrary to the law of the country of origin, even if such associations do not possess an industrial or commercial establishment.

Nevertheless, each country shall be the sole judge of the particular conditions on which an association may be allowed to obtain protection for its marks.

The Danish Minister in London on 11 September 1912 wrote to the Foreign Office expressing the opinion of his Government that the above article applied to the Danish Official Mark called 'Lurmaerket', which mark was authorised for Danish butter by the Act of 12 April 1911 (Royal Order of 17 November 1911) and for Danish bacon by the Act of 27 May 1908 (Royal Order of 5 November 1908). He expressed the ex-pectation of the Danish Government that legislative or administrative measures would be taken in the United Kingdom to fulfil this obligation and that corresponding measures would be passed in the Dominions which might accede to the Convention so that the Danish mark might be fully protected.

The Secretary of State for the Colonies, in a dispatch dated 15 November 1912, to the Governor-General, asked for the views of Commonwealth Ministers on the ques-tion raised by the Danish Government. He also enclosed a copy of a letter from the Board of Trade to the Foreign Office showing that the mark in question had already been registered in the United Kingdom under section 62 of the Trade Marks Act 1905 and that no further legislation would be necessary in the United Kingdom to carry the article into effect.

The papers have been transmitted to this Department by the Department of Exter-nal Affairs.

Section 22 of the Commonwealth Trade Marks Act 1905-1912 is substantially identical with section 62 of the English Act, with two additions-

1. that it extends to 'any Commonwealth or State authority' as well as to 'any as-sociation or person', and
2. that it extends to examination of goods in respect of 'conditions' as well as 'mode' of manufacture, but as regards conditions of manufacture it applies to Commonwealth and State authorities only.

The differences between the English and Australian sections do not seem material as regards the registrability of the Danish mark, and it would therefore appear that (if section 22 is valid) the mark is registrable in Australia as it is in England.

Some of the dicta, however, of the majority of the High Court in Attorney-General for New South Wales v. Brewery Employees Union of New South Wales 6 C.L.R. 469, throw doubt on the validity of section 22 of the Act as regards a mark belonging to a non-trader. See, for instance, per Griffith C.J. at p. 513, per Barton J. at p. 525, and per O'Connor J. at p. 540.

The 'standardisation mark' is widely different in its nature from the 'workers' trade mark', but it is difficult to see, in view of the definition of trade mark in the Brewery Employees Case, how it can be held to be valid.

If it is valid, the Commonwealth legislation satisfies the requirements of the Con-vention. If it is not, the Commonwealth has no power to deal with the matter by Com-monwealth legislation (unless it could be held that power to make laws in respect of 'external affairs' authorises a law, on a subject-matter otherwise beyond the com-petence of the Parliament, necessary to carry out any treaty obligations of the Com-monwealth) and the Imperial Government must look to the States for the necessary legislation.

[Vol. 12, p. 99]

(1)Dated 2 june 1911.