The Comptroller-General of Customs asks for advice as to whether certain metallic capsules bearing a design similar in many respects to the Australian coat of arms may lawfully be used by Messrs B. & Sons, of Harris Street, Ultimo, New South Wales.

Section 113 of the Trade Marks Act 1905 is as follows:

113. No person shall without the authority of the King, or of some member of the Royal Family, or of the Governor-General, or of the Governor of a State, or of some Department of the Government of the Commonwealth or a State (proof whereof shall lie upon the person accused), assume or use in connexion with any trade business calling or profession the Royal Arms, or arms so nearly resembling them as to be likely to deceive, in such a manner as to be likely to lead other persons to believe that he is carrying on his trade business calling or profession by or under such authority.

Penalty: Twenty pounds.

Mr A.B. is the proprietor of a trade mark which consists of the Australian arms with a full-rigged ship over the shield instead of the rising sun and the motto 'Advance Australia' underneath. This mark was registered under the New South Wales Trade Marks Act in 1884.

In my opinion, the registration of the mark as aforesaid, amounts to authority by a Department of the State of New South Wales to Mr A.B. to use the Commonwealth coat of arms in that mark in the State of New South Wales. Whether the firm of Messrs A.B. and Sons Ltd has been authorised by Mr A.B. to use the trade mark does not appear from the papers, but, assuming that it is so authorised, then it is, in my opinion, authorised to use the Commonwealth coat of arms in the mark.

[Vol. 14, p. 412]