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Lord Haskel moved Amendments Nos. 267B to 267G:

Page 33, line 7, leave out ("taking any") and insert ("determining whether to take either").
Page 33, line 15, leave out subsection (4).
Page 33, leave out line 21 and insert ("For subsection (2) substitute--").
Page 33, line 26, after ("documents") insert ("or
(ii) any document which falls within a specified category,").
Page 33, leave out line 35.
Page 33, line 39, leave out from ("premises") to ("as") in line 40 and insert ("to give the Director such explanation of the documents").

On Question, amendments agreed to.

[Amendments Nos. 268 and 269 not moved.]

Lord Haskel moved Amendments Nos. 269A and 269B:

Page 34, line 37, leave out ("taking") and insert ("determining whether to take").
Page 34, line 43, at end insert--
("(6) The amendments made by this section and section 65 have effect in relation to sectoral regulators in accordance with paragraph 1 of Schedule 10.").

On Question, amendments agreed to.

Clause 63, as amended, agreed to.

Clause 64 [Investigations: complex monopolies]:

On Question, Whether Clause 64 shall stand part of the Bill?

Lord Fraser of Carmyllie: I must record this first minor victory in the course of the Committee stage of the Bill. I congratulate the Government on shooting our fox.

Clause 64 negatived.

Clause 65 [Enforcement]:

Lord Haskel moved Amendments Nos. 269C to 269E:

Page 35, line 28, leave out subsection (2) and insert--
("(2) Omit subsections (1) and (2).").
Page 35, line 32, leave out ("44(3) or 45(4)(b)") and insert ("44(2)").

25 Nov 1997 : Column 968

Page 35, line 37, at end insert--
("(5) If a person is charged with an offence under subsection (4) in respect of a requirement to produce a document, it is a defence for him to prove--
(a) that the document was not in his possession or under his control; and
(b) that it was not reasonably practicable for him to comply with the requirement.
(6) A person who intentionally obstructs the Director in the exercise of his powers under section 44 is guilty of an offence and liable--
(a) on summary conviction, to a fine not exceeding the prescribed sum;
(b) on conviction on indictment, to a fine.
(7) A person who wilfully alters, suppresses or destroys any document which he has been required to produce under section 44(2) is guilty of an offence and liable--
(a) on summary conviction, to a fine not exceeding the prescribed sum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both." ").

On Question, amendments agreed to.

Clause 65, as amended, agreed to.

Clause 66 [Services relating to use of land]:

10 p.m.

Lord Haskel moved Amendment No. 270:

Page 35, line 40, at end insert ("made by statutory instrument").

The noble Lord said: This amendment relates to Clause 66. I am aware that Members of the Committee opposite have given notice of their intention to oppose the Question that this clause stand part of the Bill. It may therefore be helpful if--

Noble Lords: No, we shall not.

Lord Haskel: In that case, I beg to move.

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

The Viscount of Falkland moved Amendment No. 270A:

After Clause 66, insert the following new clause--

Trade marks, names etc: unfair competition

(" .--(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 Viscount said: In moving Amendment No. 270A I wish to speak also to Amendments Nos. 270B, 270C and 270D. I speak on behalf of my noble friend Lord McNally, who has important business tonight at the Liberal Democrat ball. I hope that I am not a Cinderella on this occasion because if I am dragged off to the ball I shall go reluctantly.

25 Nov 1997 : Column 969

These amendments tackle the problems of manufacturers and retailers when they are faced with look-alike products which have been placed on the market by competitors. Look-alike products seek unfairly to gain market share, usually but not exclusively for retailers, through copying the packaging of a brand leader. They cause confusion among consumers and thus represent unfair competition.

The Committee will know that the issue has been raised in the Chamber on other occasions, most notably during the passage of the Trade Marks Bill. At that time the then government urged that the problem might be resolved by the changes made by that Bill. However, the measures introduced at that time have proved inadequate. Unfair competition has continued and the year 1996 in particular saw a rash of look-alike products launched onto the market, which included Tesco's assault on Kellogg's products and Asda's Puffin biscuit which is clearly modelled on the Penguin biscuit which is familiar to the Committee. In addition, the Nestle company spent many millions of pounds entirely repackaging its brands to escape from the ever closer mimic brands being launched by its competitors.

We feel that no one can deny that look-alikes represent unfair competition and that they are a competition issue. The adoption of a close imitation of another's trade dress to boost sales surely cannot be fair competition. As well as being a blatantly parasitic practice which distorts effective competition between competitors, it also damages consumers directly. A recent poll by NOP showed that 41 per cent. of consumers believe that look-alike packaging indicates that the product probably has the same origin as that of the brand.

The Department of Trade and Industry appears not to know who is responsible for the issue. After quite adamantly informing brand owners during the passage of the Trade Marks Act in 1994 that this was a competition issue in 1994, my noble friend understands that the department has recently told the British Brands Group that this is, after all, not a competition issue and that it should be dealt with by trade mark law. Amendment No. 270A establishes the notion that unfair competition will be actionable in the same way as any infringement of property rights. Amendment No. 270B tackles the problem of confusion. It outlaws unfair competitive practices which are likely to cause consumer confusion, in particular in relation to the products and services of another.

Amendment No. 270C prohibits practices which will dilute the good will and reputation of an enterprise. Look-alikes copy the general trade dress and appearance of brands, seeking to suggest that they have the same qualities and values of the brand being copied and that the product shares its origins. By using look-alike packaging and product identification, some products trade on a reputation which has been established by leading brands over a number of years--a reputation built on continued positive consumer experience of those products. Amendment No. 270C would prevent such parasitic trading on brand goodwill and reputation.

25 Nov 1997 : Column 970

We believe it essential that the Government accept that this is a significant issue. Current legal remedies have failed. Brand owners through the British Brands Group have expressed their concern about the lack of legal protection under current laws. There is ample evidence of consumer confusion about the origin of look-alike products. My noble friend's past included a period working for the British Retail Consortium. My noble friend Lord McNally would not be party to any measure which damaged the ability of retailers to compete vigorously with own-label products against brands. That would be normal and acceptable. But look-alikes are not a legitimate business practice. Other European countries have laws against the use of look-alikes, and that does not inhibit the growth of own-label products. We seem to be the odd ones out in Europe in not giving protection to consumers and brand manufacturers, many of whom are major inward investors, against unfair business practices of this kind.

In the absence of effective remedies through trade mark law, passing off or competition law, we ask that the Government use this Bill as an opportunity to tackle these problems.

Recent governments of both hues have been looking at this issue for some time. There seems now little excuse for inaction on the ground of lack of forewarning about the issue. The United Nations World Intellectual Property Organisation has produced model law on the issue, on which these amendments are based, which are being considered by the DTI Standing Advisory Committee on Intellectual Property. However, we have yet to learn the department's response. Brand owners have been pressing Ministers for some time on the issue and would like to see some action. I hope that the Minister will prove forthcoming in his response. I beg to move.

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