There is some doubt whether the mark proposed to be registered is in fact a trade mark in the sense in which that expression is used in the Constitution.

Section 22 of the Trade Marks Act 1905-1912 provides for the registration of a standardisation trade mark. That section is as follows:

22

1. Where any Commonwealth or State authority, or any association or person, undertakes the examination of any goods in respect of origin, material, mode or conditions of manufacture, quality, accuracy, or other characteristic, and certifies the result of such examination by a mark used upon or in connexion with such goods, the Minister may, if he judges it to be to the public advantage, permit the authority association or person to register the mark as a trade mark in respect of such goods, whether the authority association or person is or is not a trader, or is or is not possessed of a goodwill in connexion with such examination and certifying.
2. When registered, the trade mark shall be deemed in all respects to be a registered trade mark, and the authority, association, or person to be the registered proprietor thereof, save that the trade mark shall not be transmissible or assignable except with the permission of the Minister.
3. This section shall as to conditions of manufacture apply to Commonwealth and State authorities only.

Assuming that that section is a valid exercise of the powers of the Commonwealth Parliament, I think that if the proposal is to vest the British Empire Trade Mark in some authority who will authorise its use after an examination of the goods, the proposal, so far as it related to Australia, would be within the legislative power of the Commonwealth.

It might also possibly be valid as a measure relating to trade and commerce with other countries.

However, before advising definitely on the matter, I recommend that full particulars of the method in which it is proposed to use the mark be obtained.

[Vol. 15, p. 401]