CHAP. 11] THE COMMONWEALTH OF AUSTRALIA 841 
factured by the workers or associations of workers by whom 
they were registered, and the Act penalized the use of marks in 
the case of goods not produced by the workers or associations. 
The aim of the enactment was, of course, to extend the influ- 
ence of trade unions by allowing the immediate identification 
of goods as produced under union conditions, and several 
brewery companies of New South Wales questioned the 
validity of part vii. There were several minor points at 
issue, (1) whether the companies were substantially injured 
by the mere existence of the law, (2) whether the Attorney- 
General for New South Wales had a right to intervene on 
behalf of the public of the state, and (3) whether an injunction 
was the proper remedy ; but all these points were settled in 
favour of the plaintiff, though Isaacs and Higgins JJ. dis- 
sented on heads (1) and (3), and Higgins also on head (2).! 
The decision of the Court was against the validity of the 
part of the Act attacked. They held (Griffith C.J., Barton 
and O’Connor JJ.) that the power of the Commonwealth to 
legislate as to trade-marks did not extend to permit the 
creation of what was not a trade-mark at all in the sense of 
that word as understood in 1900, the date of the enactment 
of the Constitution. As O’Connor J.2 pointed out, a workers’ 
trade-ark was deficient in both of the essential character- 
istics of a trade-mark as ordinarily understood, a trade or 
business connexion between the proprietor of the trade-mark 
and the goods in question, and distinctiveness in the sense of 
deing used to distinguish the particular goods to which it is 
applied from other goods of a like character belonging to 
other people. As this part of the Act did not fall within 
the powers of the Parliament to legislate as to trade-marks, 
it could only be supported if it fell under some other head of 
the powers of the Commonwealth. But though its pro- 
visions might be in part justified under the power given by 
3. 51 (i) of the Constitution to legislate regarding trade and 
commerce with other countries and between the states, 
nevertheless the substantive aim of the part of the Act 
concerned was to regulate the internal trade of a state, and 
Cf. Harrison Moore, pp. 395-7. 6 C. L. R. 469, at p. 540.