What, then, is included within the legal term "trade mark" as used in the Constitution? In entering upon that inquiry some general principles of interpretation may well be kept in view. The Constitution, it must be remembered, is an instrument of government which from its nature must express its meaning in general terms. It is not only a law in itself, but an authority for making laws, and was intended by means of its broad general terms to adapt itself as far as possible to the changing conditions of trade and commerce, and to the new conceptions of legal rights and obligations which might in the ordinary course of things be expected to be evolved in the development of Australia. On the other hand it must always be remembered, as this Court has on several occasions pointed out, that the Constitution is something more than an instrument of government. It embodies the terms on which the people of the several States agreed for the sake of union to surrender their autonomy in certain respects. Keeping both these aspects of the Constitution in view, the true rule of interpretation would appear to be that there should be given to all legal and technical expressions the widest meaning that is consistent with the terms of the contract of union.’
In the case of South Carolina v. United States Mr. Justice Brewer, in delivering the judgment of the Court, says, in reference to construing the words of the American Constitution in the sense in which they are used by its framers:?"The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This is no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Dred Scott v. Sandford :?"It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizens; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this Court, and make it the mere reflex of the popular opinion or passion of the day." "
When, by the terms of this instrument of government and of union, the people of the several Colonies of Australia gave up to the Commonwealth the power to make laws in respect of trade marks?a power which when once exercised by the enacting of a law was to become exclusive within the area covered by that law?what was the subject matter of legislation which they thereby surrendered? I agree with Dr. Cullen that in ascertaining what that was we must remember that the power is "to make laws with respect to trade marks," that the power is not to be confined by mere conditions or qualifications attached by law to the use of trade marks at the time the Constitution was passed, except in so far as those conditions and qualifications were of the essence of the legal concept of trade mark as generally understood at that period. As Mr. Justice Brewer observes in the passage last quoted:?"while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable." Those words seem to suggest that the true line of inquiry is first to ascertain what were the essential characteristics of a "trade mark" in Australia at the time when the Constitution was passed, disregarding all conditions, qualifications, and attributes, which were not of its very nature and essence, and then to ascertain whether those characteristics are to be found in the "workers' trade mark" now under consideration.
In 1900 there were in force in all the Australian Colonies enactments relating to trade marks. There were also in Great Britain and other parts of the British Empire bodies of Statute law on the same subject. The English Courts and the Courts of the several Colonies had before then on many occasions expounded the law on the subject. If there were at that time any difference between the meaning of "trade mark" in English law and in the laws of the Australian Colonies we would be bound, I think, to assume that the Constitution used the expression in the sense known and recognized in Australia. But that question does not arise here because there was no such difference. On the contrary, there was and is universal agreement in the laws of every part of the British Empire as to what is included in the expression, and that universal agreement extends to the mercantile and business community as well as to lawyers and legislatures. In the course of argument some distinction was attempted to be drawn between the meaning of the expression in the lawyer's sense of the word and in that adopted by ordinary citizens. But there is no such distinction. The mercantile and business communities naturally use legal expressions with the meaning which the Courts and the legislature have attached to them.
If it were necessary now to decide the matter, I would have no hesitation in holding that in 1900 the legal concept of a trade mark in that country was identical with that obtaining in Australia and in the British Empire generally. That view is strongly supported by the reasoning of the American Judges in many cases. In Weener v. Brayton the question for decision was whether a union label, similar in all respects to that in question here, was a "trade mark." The Court held that it was not, that it was entirely wanting in the essential characteristics of a "trade mark" as that expression was understood in its ordinary legal meaning. For that reason, apparently, it was deemed necessary in many of the States of America to pass special legislation for the purpose of constituting the union label a trade mark and so bring it within the protection of the ordinary law of trade marks. The value therefore of illustrations from American legislation and American decisions in this controversy is that they would appear to demonstrate that the legal concept of a trade mark in that country was identical with that which obtained throughout the British Empire in 1900. In inquiring what was included in the term "trade mark" in Australia in that year it is very important to consider the common law. The concept of a trade mark is the product of the common law, and in England, long before there was any legislation on the subject, trade marks as they now are had been established and recognized by the Courts. That had also been the case in America, and the observations of Mr. Justice Miller on their origin in that country are equally applicable here. In the Trade Mark Cases he says:?"The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, the exclusion of use by all other persons, has been long recognized by the Common Law and the Chancery Courts of England and of this country, and by the Statutes of some of the States. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a Court of Equity, with compensation for past infringement. This exclusive right was not created by the Act of Congress, and does not now depend upon it for its enforcement. The whole system of trade mark property and the civil remedies for its protection existed long anterior to that Act and have remained in force since its passage."After this species of right had been long recognized by the English Courts it was adopted and regulated by the English Statute law, and afterwards by Statutes in the several Colonies of Australia, which in substance followed the English legislation. In the course of the very able argument addressed to us on both sides an exhaustive examination was made of the English Statute law relating to trade marks and of the Statutes in force in the several Colonies of Australia at the time when the Constitution was passed. But I have been unable to see that Statutes, either in England or in Australia, except the special English enactments which I shall next mention, have done more than adopt, regulate, and protect "trade marks" as recognized at common law.