Messrs Phillips, Ormonde & Co. have written the following letter to the Secretary, Defence Department:

The Geneva Convention Act 1911 which was promulgated in England on August 18th 1911 in effect enacted, inter alia:

1. That from the commencement of the Act it would not be lawful for any person to use for the purposes of trade or business, the heraldic emblem of a red cross on a white ground, or the words 'Red Cross' or 'Geneva Cross'.
2. That the proprietor of a trade mark registered before the passing of the Geneva Convention Act 1911 and containing any such emblem or words might continue to use such trade mark for a period of four years from the passing of the Act.

By Order in Council, dated February 11th 1913, His Majesty declared the application of the said Act to the Commonwealth of Australia, the Order to come into force on a date to be fixed by the Governor-General in Council.

On May 15th 1913, the Governor-General in Council ordered the Geneva Convention Act 1911 should come into force in the Commonwealth on June 1st 1913.

We have been advised that the proprietor of a trade mark which includes the heraldic emblem of a red cross on a white ground, or the words 'Red Cross' or 'Geneva Cross', properly registered in the Commonwealth, prior to May 15th 1913, may continue to use the said trade mark for a period of four years from the said 1st June 1913, namely, until June 1st 1917, but it has been suggested that the term of four years referred to dates in its application to the Commonwealth, not from June 1st 1913 (when the Order came into force in the Commonwealth), but from the date of the passing of the Geneva Convention Act 1911 in England, namely, August 18th 1911.

It appears to us that the said term of four years should date from June 1st 1913.

Will you oblige us by advising-

1. the practice of the Department with respect of the above,
2. whether any decision has been arrived at as to when the term of four years referred to is to commence from in the Commonwealth.

An early response will be appreciated. The Secretary, Department of Defence, forwards the papers for advice with the following minute:

With reference to the attached letter from Phillips, Ormonde & Co., Patent and Trade Mark Attorneys and Engineers, Melbourne, relative to the use of the Red Cross for the purpose of trade or business, I am directed to request the favour of your opinion as to the date from which the period of four years referred to in section 1(3) of the Act should be allowed to date in its application to such marks or labels as were in use in Australia previous to the passing of the Act, or of the Orders in Council bringing the Geneva Convention Act 1911 into force in Australia. The Order in Council referred to does not, as stated, bring the Act into force in Australia.

The Act is expressly declared to extend to His Majesty's possessions outside the United Kingdom, 'subject to such necessary adaptations as may be made by Order in Council.' The Act was in force in Australia before the Order in Council was made.

All that the Order in Council of 11 February 1913 did was to provide for the
adaptation of the Act in certain respects in its application to the Commonwealth of Australia and the Territory of Papua.

In my opinion it is quite clear that the period of four years mentioned in sub-section (3) of section 1 of the Act dates from the passing of the Act, that is to say from 18 August 1911, and is not affected in any way by the Order in Council.

[Vol. 13, p. 469]