| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Haskel moved Amendment No. 201:
The noble Lord said: My Lords, we considered this amendment on day two. I beg to move.
On Question, amendment agreed to.
Clause 61 [Power to enter premises: Director's special investigations]:
[Amendment No. 202A not moved.]
Lord Haskel moved Amendment No. 202:
The noble Lord said: My Lords, we have already debated this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 202B not moved.]
Lord Haskel moved Amendment No. 203:
The noble Lord said: My Lords, we have already debated this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 203A and 203B not moved.]
Lord Haskel moved Amendment No. 204:
The noble Lord said: My Lords, we debated this amendment on day two. I beg to move.
On Question, amendment agreed to.
Lord Haskel moved Amendment No. 205:
Page 31, line 34, leave out from first ("to") to end of line 37 and insert ("the High Court are to be read as references to the Court of Session.").
Page 31, line 38, leave out from beginning to ("by") in line 39 and insert ("A judge of the High Court may issue a warrant if satisfied, on an application made to the High Court in accordance with rules of court").
Page 32, line 4, at end insert--
("( ) A Director's special investigation is also being obstructed if--
(a) there are reasonable grounds for suspecting that there are books or records on the premises which an authorised officer of the Director has power to examine;
(b) the officer has produced his authorisation to the undertaking, or association of undertakings, and has required production of the books or records; and
(c) the books and records have not been produced as required.").
Page 32, line 29, leave out from first ("to") to end of line 32 and insert ("the High Court are to be read as references to the Court of Session.").
After Clause 61, insert the following new clause--
(".--(1) A warrant issued under section 60 or 61 must indicate--
(a) the subject matter and purpose of the investigation;
(b) the nature of the offence created by section 62.
(2) The powers conferred by section 60 or 61 are to be exercised on production of a warrant issued under that section.
(3) If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it--
(a) take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
(b) if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.
(4) If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.
(5) In this section--
"named officer" means the officer named in the warrant; and
"occupier", in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.").
The noble Lord said: My Lords, we debated this amendment on day two. I beg to move.
On Question, amendment agreed to.
Clause 63 [Monopoly investigations: general]:
[Amendment No. 206 not moved.]
Clause 64 [Investigations: complex monopolies]:
Lord Haskel moved Amendment No. 207:
The noble Lord said: My Lords, we debated this amendment on day two. I beg to move.
On Question, amendment agreed to.
[Amendment No. 208 not moved.]
Lord Fraser of Carmyllie moved Amendment No. 209:
Page 35, line 12, at end insert--
("( ) If a person is charged with an offence under subsection (4) in respect of a requirement--
(a) to provide an explanation of a document, or
(b) to state where a document is to be found,
it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.").
Before Clause 66, insert the following new clause--
(" . Sections 44 and 45 of the Patents Act 1977 shall cease to have effect.").
The noble and learned Lord said: My Lords, I may have some knowledge about some areas of the law, but I have to say that I have virtually no knowledge of that area of the law which is encompassed by the Patents Act. This is an important amendment. I look forward to the Minister's response. I beg to move.
Lord Haskel: My Lords, I shall speak also to Amendment No. 223. I am most grateful to the noble and learned Lord for raising the position of Sections 44 and 45. In a very few words he made an extremely strong case. So we are prepared to accept his amendment. Clearly we shall have to address the transitional arrangements, such as the position of agreements currently in force which are affected by Sections 44 and 45 of the Patents Act. We will also have to consider any savings which may need to be made affecting the respective territorial extent of the Patents Act and the Competition Bill. Such matters can be dealt with under our powers in Clause 70 or in another place.
Lord Fraser of Carmyllie: My Lords, I knew that I was articulate and fluent, and all the rest, but I have been quite bowled over by the Minister's response for which I am very grateful.
On Question, amendment agreed to.
Lord McNally moved Amendment No. 209A:
After Clause 66, insert the following new clause--
(" .--(1) Any of the acts and practices referred to in sections (Trade marks, names etc: confusion) and (Trade marks, names etc: damage to goodwill or reputation) of this Act shall constitute an act of unfair competition and shall be actionable as such.
(2) In an action for unfair competition under this Act all such relief by way of damages, injunctions, accounts or otherwise shall be available to the plaintiff as is available in respect of the infringement of any property right.
(3) Nothing in this Act affects any of the laws relating to passing off or malicious falsehood or to the protection of any intellectual property right.").
The noble Lord said: My Lords, I do not know whether that means the shorter the speeches the more chance we have of convincing Ministers. The Minister will know that my broad philosophical approach to the Bill is that a competition Bill should be about competition and that we should use the opportunity to see whether we can advance the cause of competition. It is in that spirit that I move Amendment No. 209A and speak also to Amendments Nos. 209B to 209D.
When I raised the question of lookalikes earlier in the passage of the Bill, a number of noble Lords--most vigorously the noble Lord, Lord Peston--assured me that it had already been dealt with in earlier legislation. I can only say that if that is the case it was dealt with inadequately. The grievance remains about lookalike products and in proposing the amendments it is my
Lookalike products trade parasitically by mimicking the package of brands. They use the brand's imagery and reputation to persuade consumers that their products are related to the brand. Lookalike packaging is most commonly used by retailers who seek to gain market share by associating their products with the brand leaders. There is no doubt that authoritative polling has shown that shoppers are confused and believe that when they are buying similarly packaged products they are buying the genuine goods.
I believe that an investment in a brand which may take years to be associated in consumers' minds with quality, taste or value should be protected on behalf of the consumers. In this case, imitation is not the sincerest form of flattery. It is a form of theft and should be treated as such. The amendments seek to prevent lookalike products by ensuring that unfair competitive practices are outlawed.
Amendment No. 209A would allow unfair competition to be actionable, just as other property rights are. Amendment No. 209B would prevent unfair competition practices which are likely to cause consumer confusion over product and services. Amendments Nos. 209C and 209D would prevent parasitic trading on brand goodwill and reputation by protecting the distinctiveness of product packaging.
Since I and other noble Lords first raised the matter, discussions have taken place with Mr. Nigel Griffiths, Minister for Competition and Consumer Affairs. He agreed to discuss the problem of lookalike products. That initiative was most welcome and I am glad to see that after some prodding the Government have been persuaded to consider the issue. However, we do not yet have on record any public statement confirming that the Government see this as an existing problem or that they are prepared to act on it. That is why I again raised the matter this evening.
The decision to produce a draft paper on potential solutions is useful, but I would welcome clarification from the Government on whether they think that the study of the problem rules out action under the Competition Bill. If the Government now accept that it is a problem, why not use this opportunity to legislate upon the issue?
If the Government do not take the opportunity to address the problem in this Bill, then when will there be legislative opportunity to tackle it? Ministers must be well aware of the difficulty of securing parliamentary time. Brand manufacturers would be extremely concerned if the issue were allowed to fall by the wayside again after years of campaigning for change.
Before I close, perhaps it would help noble Lords if I explained what the amendment will not do. It will not reduce consumer choice or raise prices. I was rather disappointed that my old employers, the British Retail Consortium, suggested that in its briefing about lookalikes. I humbly suggest to my old bosses that it is no part of their job to protect imitators because imitators
However, the amendments would not restrict the use of visual clues which indicate a product category. Such category indicators--for example, yellow bottles indicating lemon-scented detergent--would not be affected. Brand manufacturers are not seeking to limit category indicators which are an important aid to the consumer. This misunderstands the issue. It is neither the purpose nor the effect of the amendments. Lookalikes involve a whole range of features from one brand being copied closely to create a strong resemblance and an apparent link with another brand.
It is also palpable nonsense to suggest that any court would be incapable of differentiating between a category indicator and a lookalike which closely mimics the brand. As I said before, what we are dealing with here is a kind of theft, a theft of good name which has often taken years of investment to create. I beg to move.
Next Section
Back to Table of Contents
Lords Hansard Home Page