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Hon. Mr. OSBORNE-It can be done in the Post Office itself.
Hoa. Mr. STEWART-Do I understand that this resolution has been shown to Mr. Cousland
The ATTORNEY-GENERAL-Yės.
Hon. Mr. STEWART-And he saw no object. tion ?
The ATTORNEY-GENERAL-No.
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[December 6, 1909.
Hon. Mr. STEWART stated that in any case he would be advised by the Attorney-General, and would not have the advice the speaker suggested as being useful, at his disposal. The popular notion would be, at anyrate, that the Attorney-General decided the matter. There were some people who disapproved of the Governor-in-Council being set up as a tribunal. He thought some of the lawyers were against it, but as far as the mercantile community were concerned, they wanted it.
THE HONGKONG WEEKLY. PRESS AND clause sent by the Colonial Secretary on No- vember 19th to the Chamber of Commerce, and The COLONIAL SECRETARY-Not the whole has met with the approval of the Chamber of of the work. Part is being done at present. Commerce and the China Association. We
HIS EXCELLENCY-I presume the hon. mem-accept the resolution as it is now read. ber who proposed this resolution does not wish to press it to a division. I may say the Govern- ment are fully in sympathy with the object, and I myself am very fully in sympathy with it, but I take some exception to the wording of the resolution. That is really going rather further than the meaning of my words: I mean to say that the word nuisance is one which I think may carry a wrong con- struction in this connection. Building opera- tions when carried on in such localities as the Law Courts and Post Office, the repair of roads, permanent roads in the city which involve the use of tar macadam, naturally are nuisances in the ordinary conversational accep tation of the term. They are great nuisances in that sense, but I am most anxious that the nuisance should be abolished as soon as it possibly can be. I will give my own personal consideration to the matter, and whatever can be removed will be removed. I therefore feel that
there is no radical point of difference between the official and unofficial members. Do you wish, sir, to put your motion to a division ?
Hon. Mr. STEWART-I have no particular
wish to.
STEAM BOILER RULES.
The COLONIAL SECRETARY-Sir. I beg to lay on the table draft rules under the Steam Boilers Ordinance 1909 (Ordinance No. 32 of 1909). Under section 10 of the Ordinance the rules must be laid on the table of the Legis- lative Council and any rule which is disapproved must be by resolution of this honourable Council within six weeks after such laying. Hon. members have, therefore, six weeks to object by resolution to any of these rules,
TRADE MARKS AMENDMENT ORDINANCE. Council resolved itself into committee to con- sider the Bill intitled "An Ordinance to amend the Law relating to Trade Marks.
On clause 21,
as
HIS EXCEELENCY said the main object of making this clause identical with the Home Act was to get the benefit which the Bill intend- ed to confer upon the holders of trade marks.
The Hon. Mr.
that HEWETT said they had not seen the text of the Treaty between Great Britain and Japan they did not know how it would affect trade marks here. When they did get it they might very well agree with his Excellency that it might be advisable. to modify the clause.
HIS EXCELLENCY-I propose when sub- mitting the Ordinance to the Secretary of State to attach a memorandum giving the full reasons which have prompted us to leave out this section.'
The ATTORNEY-GENERAL moved that section 22 be struck out, and the following substituted and re-numbered section 21 :-
The Registrar may refuse to register any trade mark if it is proved to his satisfaction by the person opposing the application for regis-, tration that such mark is identical with, or so nearly resembles as to be calculated to deceive any trade mark which is already registered (in respect of goods of the same description as those in respect of which registration in Hong- kong is applied for) in a country or place from which goods of that description originate.
Provided always that no application to register shall be refused under this section in the following cases:
(A) If the applicant proves that he or his predecessors in business have in Hongkong, in connection with such goods as aforesaid, con- tinuously used the trade mark, the registration of which is applied for from a date anterior to the date of the registration of the other trade mark in such country or place of origin, or unless the opponent gives an understanding to the satis- faction of the Registrar that he will, within three months from the giving notice of opposi- tion, apply for registration in Hongkong of the trade mark so registered in the country or place of origin, and will take all necessary steps to complete such registration.
HIS EXCELLENCY-This draft clause has been accepted, I understand, by both the China Association and the Chamber of Commerce?
HOD. Mr. HEWETT-The amended clause, as read by the Attorney-General, is the corrected
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Hon. Mr. STEWART-He is the man' knows more about it than anyone else in the Colony.
The section was agreed to. On Clause 28 being read,
The ATTORNEY-GENERAL moved that the words "Registrar or Court" be deleted, and the word "Tribunal substituted. The word tribunal should mean Governor, Court or Registrar.
The amendment was agreed to. For
section 44, re-numbered 43, the ATTORNEY-GENERAL moved that the following be substituted :
(1) The Court may, on the application in writ- ing made within seven years from the registration of a trade mark in Hongkong, by any person ag grieved by such registration, remove such trade mark from the register if it is proved to the satisfaction of the Court that such trade mark is identical with, or so nearly resembles as to be calculated to deceive, any trade mark which was, prior to the registration in Hong- kong of the first mentioned trademark registered (in respect of goods of the same description as those in respect of which the first mentioned trade mark in registered in Hongkong) in a country or place from which goods of that description originate.
Provided always that no trade mark shall be removed from the register under this section in the following cases:
(A) If the proprietor of the other trademark consented to the registration in Hongkong of the first mentioned trademark; or,
(B) If the proprietor of the trade mark registered in Hongkong proves that he or his predecessors in business have continuously used such trade mark in Hongkong, in connection with such goods as aforesaid from a date anterior to the date of the registration of the other trademark in the country or place of origin; or,
Hon. Mr. HEWETT said the idea of suggesting the Governor-in-Council instead of the Governor was to have a sort of wider board to discuss complex questions of this kind, and they based their proposal very largely on the Home Act. There they had not only the Courts of Law, but the Board of Trade, which was very much the same as the Governor-in-Council would be here. The Home Act provided an arbitration board, which was not so tumbersome or lengthy as Courts of Law, and was at the same time formed of experts, The Governor himself would be advised by only one or two of his officials. That was the point of the Chamber of Commerce.
HIS EXCELLENCY said the main point to be considered was the similarity between two
marks."
The COLONIAL SECRETARY stated that in the Government had never contemplated sub- stituting the Governor-in Council for the Governor there was no mention of the Governor- in Council at all the original darfts of the Bill. The Trade Marks Ordinance had worked very satisfactorily, and there were no complaints from anybody except lawyers complained because it did not bring enough grist to the mill.
Hon. Mr. HEWETT stated that after further
consideration the unofficial members certainly thought it would be better to insert the words
Governor-in-Council."
The COLONIAL SECRETARY stated that under the existing law the refusal to register a trade. mark lay absolutely at the discretion of His Excellency the Governor. He submitted that the Governor was as well qualified as the Council to decide whether a mark should be registered or not.
.
is a question depending entirely on appreciation. of the similarity between two marks
Hon. Mr. HEWETT-Do I understand there
<
The COLONIAL SECRETARY-That is so. Hon. Mr. STEWART-I should think the more people we have to decided that question the better.
within the five years immediately preceding (C) Unless the applicant proves either that the making of the application under this section there has been bond fide user in connection with such goods as aforesaid in Hong-want moral support in such a case. kong of the trade mark registered in the country or place of origin, or that the special circum
it would be much worse.
The COLONIAL SECRETARY—I should think
Hon. Mr. STEWART said he would always
stances of the trade account for such a known user, or that the trade mark so registered in the country or place of origin was first registered there within the like period of five years, and in either event gives an undertaking to the satis- faction of the Registrar that he will within three months from the making of the applica- tion under the section apply for registra tion in Hongkong of the trade mark so regis- tered in the country or place of origin, and will take all necessary steps to complete such Tegistration.
(2) All applications under this section shall be heard in open Court in original jurisdiction. HIS EXCELLENCY A person can apply for an injunction, but he is not entitled to bring an action for damages.
Hon. Mr. HEWETT-That was the point, your Excellency: Whether a person not registered should be allowed to apply for an injunction, but not for damages.
HIS EXCELLENCY thought that met the views of members.
Hon. Mr. HEWETT said the only other point was the question of inserting the words "Go- ernor-in-Council" instead of "Governor."
The COLONIAL SECRETARY stated
that under the existing law the matter was left in the hands of the Governor, and there was no reason why a change should be made to the Governor-in-Council.
MR. STEWART said the Governor meant the Attorney-General.
HIS EXCELLENCY-No, the Governor can use his own discretion. He can use his dwu common-sense in the matter.
HIS EXCELLENCY stated that in judging of similarity and deciding on the granting of trade marks it was necessary to look through a huge number of large volumes of registered trade marks to see how near two resembled each other. He did not consider it necessary that this should be referred to the Executive Council,
Hon. Mr. HEWETT stated that they would not press the point, but might perhaps find it necessary to bring the matter up again. They would now take his Excellency's decision.
Council then resumed.
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STAMP ORDINANCE AMENDMENT. The ATTORNEY-GENERAL moved the first An Ordinance to reading of a Bill entitled amend the Stamp Ordinance, 1901."
The COLONIAL SECETARY seconded, and the Bill was read a first time.
THE CODE OF CIVIL PROCEDURE. The ATTORNEY-GENERAL moved the first reading of a Bill entitled An Ordinance to amend the Code of Civil Procedure."
The COLONIAL SECRETARY seconded, and the Bill was read a first time.
SQUATTERS' ORDINANCE AMENDMENT. The ATTORNEY-GENERAL moved the first. reading of a Bill entitled Au Ordinance to amend the Squatters' Ordinance, 1890.”
The COLONIAL SECRETARY seconded, and the Bill was read a first time.
EXEMPTION OF CROWN LEASES.
The ATTORNEY GENERAL moved the first reading of a Bill entitled An Ordinance to exempt Crown Leases granted in respect of Foreshore and submerged land in the New Ter ritories from a certain condition imposed under the Foreshores and Sea Bed Ordinance 1901.
The COLONIAL SECRETARY second and the Bill was read a first time.
No comments yet.
Private notes are available after approval.