MERCHANDISE MARKS ORDINANCE, 1890

MERCHANDISE MARKS ORDINANCE, 1890

No. 4 of 1890.

An Ordinance to amend the law relating to fraudulent
marks on merchandise.
[1st January, 1891.]

1. This Ordinance may be cited as the Merchandise Marks
Ordinance, 1890.

2.-(1) For the purposes of this Ordinance,

(a) False trade description means a trade description
which is false in a material respect as regards the goods to
which it is applied, and includes every alteration of a trade
description, whether by way of addition, effacement, or other-
wise, where that alteration makes the description false in a
material respect; and the fact that a trade description is a
trade mark, or part of a trade mark, shall not prevent such
trade description being a false trade description within the
meaning of this Ordinance.

(b) Goods means anything which is the subject of trade,
manufacture, or merchandise.

(c) Name includes any abbreviation of a name.

(d) Person, manufacturer, dealer, or trader,
and proprietor, include any body of persons, corporate or
unincorporate.

(e) Trade description means any description, statement,
or other indication, direct or indirect,-

(i) as to the number, quantity, measure, gauge or weight
of any goods; or

(ii) as to the place or country in which any goods were
made or produced; or

(iii) as to the mode of manufacturing or producing any
goods; or

(iv) as to the material of which any goods are composed;
or

(v) as to any goods being the subject of an existing patent,
privilege, or copyright;

* As amended by Law Rev. Ord., 1923.
and the use of any figure, word, or mark which, according to
the custom of the trade, is commoly taken to be an indica-
tion of any of the above matters, shall be deemed to be a
trade description within the meaning of this Ordinance.

(f) Trade mark means a trade mark registered in the
Register of Trade Marks kept under any Ordinance, or kept
under or preserved by the Trade Marks Act, 1905, and includes
any trade mark which, either with or without registration,
is protected by law in any British possession or foreign state
to which the provisions of section 91 and the proviso to
section 98 (1) of the Patents and Designs Act, 1907, are
under Order in Council, for the time being applicable.

(2) The provisions of this Ordinance respecting the ap-
plication of a false trade description to goods shall extend to
the application to goods of any such figures, words, or
marks, or arrangement or combination thereof, whether
including a trade mark or not, as are reasonably calculated
to lead persons to believe that the goods are the manufacture
or merchandise of some person other than the person whose
manufacture or merchandise they really are.

(3) The provision of this Ordinance respecting the appliica-
tion of a false trade description to goods, or respecting goods
to which a false trade description in applied, shall extend to
the application to goods of any false name or initial of a
person, and to goods with the false name or initials of a
person applied, in like manner as if such name or initials
were a trade description, and for the purposes of this enact-
ment false name or initials means, as applied to any
goods, any name or initials of a person which-

(a) are not a trade mark or part of a trade mark; and

(b) are indential with or a colourable imitation of the
name or initials of a person carrying on business in con-
nexion with goods of the same description, and not having
authorised the use of such name or initials; and

(c) are either of a fictitious person or of some person not
bona fade carrying on business in connexion with such good.

3.-(1) Every person who-

(a) forges any trade mark; or

(b) falsely applies to goods any trade mark or any mark
so nearly resembling a trade mark as to be calculated to
decesive;or
(c) makes any die, block, machine, or other instrument for
the purpose of forging, or of being use for forging, a trade
mark; or

(d) applies any false trade description to goods; or

(e) disposes of or has in his possession any die, block,
machine, or other instrument for the purpose of forgoing a
trade mark; or

(f) causes any of the things above in this section mention-
ed to be done,

shall, subject to the provisions of this Ordinance and unless
he proves that he acted without intent to defraud, be guilty
of an offence.

(2) Every person who sells, or exposes for, or has in his
possession for, sale or any purpose of trade or manufacture,
any goods or things to which any forged trade mark or false
trade description is applied, or to which any trade mark or
mark so nearly resembling a trade mark as to be calculated
to deceive is falsely applied, as the case may be, shall, unless
he proves-

(a) that, having taken all reasonable precautions against
committing an offence against this Ordinance, he had, at the
time of the commission of the alleged offence, no reason to
suspect the genuineness of the trade mark, mark, or trade
description; and

(b) that, on demand made by or on behalf of the prosecutor,
he gave all the information in his power with respect to the
persons from whom he obtained such goods or things; or

(c) that otherwise he had acted innocently,
be guilty of an offence.

(3) Every person who is guilty of an offence against this
Ordinance shall be liable,-

(a) on conviction before the Supreme Court, to imprison-
ment for any term not exceeding two years, and to a fine not
exceeding two thousand dollars; and.

(b) on summary convictio; to imprisonment for any term
not exceeding four month, or to a fine not exceeding one
hundred dollars, and, in the case of a second or subsequent
conviction, to imprisonment for any term not exceeding six
months, or to a fine not exceeding two hundred and fifty
dollars; and,
(c) in any case, to forfeit every chattel, article, instrument,
or thing by means of or in relation to which the offence has
been committed.

(4) The court or magistrate before which or whom any
person is convicted under this section may order any forfeited
articles to be destroyed or otherwise disposed of as the court
or magistrate thinks fit.

(5) A person charged with an offence under this section
before a magistrate shall, on appearing before such magis-
trate and before the charge is gone into, be informed of
his right to be tried on indictment before the Supreme Court,
and, if he requires to be so tried, be committed for trial and
be so tried accordingly.

4. A person shall be deemed to forge a trade mark who
either-

(1) without the assent of the proprietor of the trade mark,
makes that trade mark or a mark so nearly resembling that
trade mark as to be calculated to deceive; or

(2) falsifies any genuine trade mark, whether by alteration,
addition, effacement, or otherise;
and any trade mark or mark so made or falsified in in this
Ordinance referred to as a forged trade mark; Provided that,
in any prosecution for forging a trade mark, the burden of
proving the assent of the proprietor shall lie on the defandant.

5.-(1) A person shall be deemed to apply a trade mark
or mark or trade description to goods who-

(a) applies it to the goods themselves; or

(b) applies it to any covering, label, reel, or other thing in
or with which the goods are sold or exposed or had in
possession for any purpose of sale, trade, or manufacture; or

(c) places, encloses, or annexes any goods which are sold
or exposed or had in possession for any purpose of sale,
trade, or manufacture, in, with, or to any covering, label,
reel, or other thing to which a trade mark to trade description
has been applied; or

(d) uses a trade mark or mark or trade description in any
manner calculated to lead to the belief that the goods in
connexion with which it is used are designated or described
by that trade mark or mark or trade description.

As amended by Law Rev. Ord., 1923.

(2) Covering includes any stopper, cask, bottle, vessel,
box, cover, capsule, case, frame, or wrapper; and label
includes any band or ticket.

(3) A trade mark or mark or trade description shall be
deemed to be applied whether it is woven, impressed, or
otherwise worked into, or annexed, or affixed to the goods, or
to any covering, lable, reel, or other thing.

(4) A person shall be deemed to falsely apply to goods a
trade mark or mark who, without the assent of the proprietor
of a trade mark, applies such trade mark or a mark so nearly
resembling it as to be calculated to deceive, but in any
prosecution for, falsely applying a trade mark or mark to
goods the burden of proving the assent of the proprietor
shall lie on the defendant.

6. Where a defendant is charged with making any die,
block, machine, or other instrument for the purpose of
forging, or being used for forging, a trade mark, or with
falsely applying to goods any trade mark or any mark so
nearly resembling a trade mark as to be calculated to deceive,
or with applying to goods any false trade description, or
causing any of the things mentioned in this section to be
done, and proves-

(1) that, in the ordinary course of his business, he is
employed, on behalf of other person, to make dies, blocks,
machines, or other instruments for making, or being used in
making, trade marks, or, as the case may be, to apply marks
or descriptions to goods, and that in the case which is the
subject of the charge he was so employed by some person
resident in the Colony, and wa not interested in the goods
by way of profit or commission dependent on the sale of the
goods; and

(2) that the took reasonable precautions against commit-
ting the offence charged; and

(3) that he had, at the time of the commission of the alleged
offence, no reason to suspect the genuineness of the trade
mark, mark, or trade description; and

(4) that he give to the prosecutor all the information in
his power with respect to the persons on whoses behalf the
trade mark, mark, or trade description was applied.
he shall be discharged from the prosecution, but shall be
liable to pay the costs incurred by the prosecutor, unless he
has given due notice to him that he will rely on the above
defence.

7.-(1) Where a watch case has thereon any words or
marks which constitute, or are by common repute considered
as constituting, a description of the country in which the
watch was made, and the watch bears no description of the
country where it was made, those words or marks shall
prima facie be deemed to be description of that country
within the meaning of this Ordinance, and the provisions of
this Ordinance with respect to goods to which a false trade
description has been applied, and with respect to selling, or
exposing for, or having in possession for, sale or any purpose
of trade or manufacture, goods with a false trade description
shall apply accordingly.

(2) For the purposes of this section, watch means all
that portion of a watch which is not the watch case.

8. In any information, indictment, pleading, proceeding,
or document, in which any trade mark or forged trade mark
is intended to be mentioned, it shall be sufficient, without
further description and without any copy or facsimile, to
state that trade mark or forged trade mark to be a trade
mark or forged trade mark.

9. In any prosecution for an offence against this Ordinance,

(1) a defendant and his wife or her husband, as the case
may be, may, if the defendant thinks fit, be called as a
witness, and, if called, shall be sworn and examined, and
may be crossed-examined and re-examined, in like manner as
any other witness; and,

(2) in the case of imported goods, evidence of the port of
shipment shall be prima facie evidence of the place or
country in which the goods were made or produced.

10. Every person who, being within the Colony, procures,
counsels, aids, abets, or is accessory to the commission, with-
out the Colony, of any act, which, if committed in the Colony,
would under this Ordinance be a misdemeanor, shall be

As amended by Law Rev. Ord., 1923.
guilty of that misdemeanor as a principal, and be liable to be
proceeded against, tried and covicted in the Colony as if
the misdemeanor had been there committed.

11.-(1) Where, on any information or complaint laid for
an offence against this Ordinance, a magistrate has issued
either a summons requiring the defendant charged by such
information or complaint to appear to answer to the same, or
has issued a warrant for the arrest of such defendant, and
either the said magistrate or any other magistrate, on or
after issuing the summons or warrant, is satisfied by informa-
tion upon oath that there is reasonable cause to suspect that
any goods or things by means of or in relation to which such
offence has been committed are in any houses or premises of
the defendant, or otherwise in his possession or under his
control in any place, such magistrate may issue a warrant,
by virtue of which is shall be lawful for any constable named
or referred to in the warrant to enter such house, premises,
or place at any reasonable time by day, and to search there-
for and seize and take away those goods or things; and
any goods or things seized under any such warrant shall be
brought before a magistrate for the purposes of its being
determined wheter the same are or are not liable to
forfeiture under this Ordinance.

(2) If the owner of any goods or things which, if the
owner thereof had been covicted, would be liable to
forfeiture under this Ordinance is unknown or cannot be
found, an information or complaint may be laid to made for
the purpose only of enforcing such forfeiture, and a magis-
trate may cause notice to be advertised stating that, unless
cause is shown to the contrary at the time and place named
in the notice, such goods or things will be forfeited; and at
such time and place the magistrate, unless the owner or any
person on his behalf, or other person interested in the goods
or things, shows cause to the contrary, may order such goods
or things or any of them to be forfeited.

(3) Any goods or things forfeited under this section, or
under any other provision of this Ordinance, may be destroy-
ed or otherwise disposed of in such manner as the court or
magistrate by which or whom the same are forfeited may
direct; and the court or magistrate may, out of any proceeds
which may be realized by the disposition of such goods or
things (all trade marks and trade descriptions being first

obliterated), award to any innocent party any loss which he
may have innocently sustained in dealing with such goods.

12. On any prosecution under this Ordinance, the court
or magistrate may order costs to be paid to the defendant by
the prosecutor or to the prosecutor by the defendant, having
regard to the information given by and the conduct of the
defendant and prosecutor respectively.

13. No prosecution for an offence against this Ordinance
shall be commenced after the expiration of three years next
after the commission of the offence, or one year next after
the first discovery thereof by the prosecutor, whichever
expiration first happens.

14. Whereas it is expedient to make further provision for
prohibiting the importation of goods which, if sold, would
be liable to forfeiture under this Ordinance:-

(1) all such goods, and also all goods of foreign manufac-
ture bearing any name or trade mark being or purporting to
be the name or trade mark of any manufacturer, dealer,
or trader in the United Kingdom, unless such name or
trade mark is accompanied by a definite indication of the
country in whic the goods were made or produced, are here-
by prohibited to be imported into the Colony, and if any
such goods are imported or brought into the Colony contrary
to the prohibition herein contained, such goods shall be
forfeited and may be destroyed or otherwise disposed of as
the Superintendent of Imports and Exports may direct;

(2) before detaining any such goods, or taking any further
proceedings with a view to the forfeiture thereof under this
Ordinance, the Superintendent of Imports and Exports may
require the regulations under this section, whether as to
information, security, conditions, or other matters, to be
complied with, and may satisfy himself in accordance with
those regulations that the goods are such as are prohibited
by this section to be imported;

(3) it shall be lawful for the Governor in Council to make
regulations, either general or special, respecting the detention
and forfeiture of goods the importation of which is prohibited
by this section, and the conditions, if any, to be fulfilled
before such detention and forfeiture, and may by such regula-
tions determine the information, notices, and security to be


given, and the evidence requisite for any of the purposes of
this section, and the mode of verification of such evidence;

(4) where there is on any goods a name which is identical
with r a colourable imitation of the name of a place in the
United Kingdom, that name, unless accompanied by the
name of the country in which such place is situate, shall
be treated for the purposes of this section as if it were the
name of a place in the United Kingdom;

(5) the regulations may apply to all goods the importation
of which is prohibited by this section, or different regulations
may be made respecting different classes of such goods or of
offences in relation to such goods;

(6) the regulations may provide for the informant re-
imbursing the Superintendent of Imports and Exports all
expenses and damages incurred in respect of any detention
made on his information, and any proceedings consequent on
such detention.

15. On the sale or in the contract for the sale of any goods
to which a trade mark or mark or trade description has been
applied, the vendor shall be deemed to warrant that the
mark is a genuine trade mark and not forged or falsely
applied, or that the trade description is not a false trade
description within the meaning of this Ordinance, unless the
contrary is expressed in some writing signed by or on behalf
of the vendor and delivered at the time of the sale or contract
to and accepted by the vendee.

16. Where, at the commencement of this Ordinance, a
trade description is lawfully and generally applied to goods
of a particular class, or manufactured by a particular method,
to indicated the particular class or method of manufacture of
such goods, the provisions of the Ordinance with respect to
false descriptions shall not apply to such trade description
when so applied: Provided that where such trade description
includes the name of a place or country, and is calculated to
mislead as to the place or country where the goods to which
it is applied were actually made or produced, and the goods
are not actually made or produced in that place or country,
this section shall not apply unless there is added to the trade
description, immediately before or after the name of that
place or country, in an equally conspicuous manner with that
name, the name of the place or country in which the goods
were actually made or produced, with a statement that they
were made or produced there.

17.-(1) This Ordinance shall not exempt any person
from any action or otehr proceeding which might, but for
the provisions of this Ordinance, be brought against him.

(2) Nothing in this Ordinance shall entitle any person to
refuse to make a complete discovery or to answer any question
or interrogatory in any action, but such discovery or answer
shall not be admissible in evidence against such person in
any prosecution for an offence against this Ordinance.

(3) Nothing in this Ordinance shall be contrued so as to
render liable to any prosecution or punishment any servant
of a master resident in the Colony who bona fide acts in
obedience to the instructions of such master, and who, on
demand made by or on behalf of the prosecutor, has given
full information as to his master.

18. Every person who falsely represents that any goods
are made by a person holding a Royal Warrant, or for the
service of His Majesty, or any of the Royal Family, or any
Government department, colonial or otherwise, shall upon
summary conviction be liable to a fine not exceeding one
hundred dollars.
[Originally No. 15 of 1890. Law Rev. Ord, 1924.] Short title. Interpretation 50 & 51 Vict. C. 28, s. 3. 5 Edw. 7, c. 15. 7 Edw. 7, c. 29. Offences as to trade marks and trade descriptions. 50 & 51 Vict. C. 28, s. 2. [s. 3 contd.] Forging trade mark. 50 & 51 Vict. C. 28, s. 4. Applying mark or description. 50 & 51 Vict. C. 28, s. 5. Exemption of certain persons employed in ordinary course of business. 50 & 51 Vict. C. 28, s. 6. Application of the Ordinance to watches. 50 & 51 Vict. C. 28, s. 7. Description of trade mark in pleading. 50 & 51 Vict. C. 28, s. 9. Rules as to evidence. 50 & 51 Vict. C. 28, s. 10. Punishment of accessory. 50 & 51 Vict. C. 28, s. 11. Issue of and proceedings on search warrant. 50 & 51 Vict. C. 28, s. 12. Costs of defence or prosecution. 50 & 51 Vict. C. 28, s. 14. Limitation of prosecution. 50 & 51 Vict. C. 28, s. 15. Prohibition of importation of goods liable to forfeiture. 50 & 51 Vict. C. 28, s.16. Implied warranty on sale of marked goods. 50 & 51 Vict. C. 28, s. 17. Provisions of the Ordinance as to false description not to apply in certain cases. 50 & 51 Vict. C. 28, s. 18. Savings. 50 & 51 Vict. C. 28, s. 19. False representation as to Royal Warrant, etc. 50 & 51 Vict. C.28, s.20.

[Originally No. 15 of 1890. Law Rev. Ord, 1924.] Short title. Interpretation 50 & 51 Vict. C. 28, s. 3. 5 Edw. 7, c. 15. 7 Edw. 7, c. 29. Offences as to trade marks and trade descriptions. 50 & 51 Vict. C. 28, s. 2. [s. 3 contd.] Forging trade mark. 50 & 51 Vict. C. 28, s. 4. Applying mark or description. 50 & 51 Vict. C. 28, s. 5. Exemption of certain persons employed in ordinary course of business. 50 & 51 Vict. C. 28, s. 6. Application of the Ordinance to watches. 50 & 51 Vict. C. 28, s. 7. Description of trade mark in pleading. 50 & 51 Vict. C. 28, s. 9. Rules as to evidence. 50 & 51 Vict. C. 28, s. 10. Punishment of accessory. 50 & 51 Vict. C. 28, s. 11. Issue of and proceedings on search warrant. 50 & 51 Vict. C. 28, s. 12. Costs of defence or prosecution. 50 & 51 Vict. C. 28, s. 14. Limitation of prosecution. 50 & 51 Vict. C. 28, s. 15. Prohibition of importation of goods liable to forfeiture. 50 & 51 Vict. C. 28, s.16. Implied warranty on sale of marked goods. 50 & 51 Vict. C. 28, s. 17. Provisions of the Ordinance as to false description not to apply in certain cases. 50 & 51 Vict. C. 28, s. 18. Savings. 50 & 51 Vict. C. 28, s. 19. False representation as to Royal Warrant, etc. 50 & 51 Vict. C.28, s.20.

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1923

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