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 1 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 otherwise, 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
u nincorporate.

(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

(i i) 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,

and' the use of any figure, word, or mark which, according to
the custom of the trade, is commonly taken to be an indication
of any of the above matte rs, shall be deemed to be a trade
description within the meaning of this Ordinance.

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, igo.5, 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 qi 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 applica-
tion of a false trade description to goods shall extend to the
application to goods- of any such figures, words, or inarks, 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
s ome person other than the person whose manufacture or
merchandise they really are.





(3) The provisions of this Ordinance respecting the applica-
tion. of a false trade description to goods, or respecting goods
to which a false trade description is applied, shall extend to
the application to goods of any false name or initials 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 enactment
' 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 identical with or a colourable imitation of the name
or initials of a person carrying on business in connexion with
goods of the same description, and not having authorized the
use of such name or initials; and

(c) are either of a fictitious person or of some person not
bond fide carrying on business in connexion with such goods.

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
deceive; or
(c) makes any die, block, machine, or other instrument for
the purpose of forging, or of being used 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 forging a trade
mark; or

causes any of the things above in this section mentioned
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,

As amended by No. 2 of 1934 [29.3.34] and Law Rev. Ord., 1937.





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 icason 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 conviction, to imprisonment for any term
not exceeding six months, or to a fine, not exceeding one
thousand 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 convic`ted 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 magistrate
and before the charge is gone into, be asked whether he wishes'
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_

(i ) without th ' e 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, wli(~.ther by alteration,
addition, effacement, or otherwise,

and any trade mark or mark so made or falsified is 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 defendant.

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 s ' old 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 or trade description has been
applied; or

(d) makes in any affidavit, declaration or writing any
statement to the effect that a trade mark or trade description is
applicable to the goods; or

(e) 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.

(2) 49 Covering includes any stopper, cask, bottle, vessel,
box, covery capsule, case, frame, or wrapper; and ' label
includes, any band or ticket.

(3) A trade mark or mark or trade descr,iption shall be
deemed to he applied whether it is woven, impressed, or other-

As amended by No. 2 of 1934 [29.3.34] and Law Rev. Ord., 1937.





wise worked into, or annexed, or affixed to the goods, or to
any covering, label, reel, or other thing.

(4) A person shall be deemed fAsely to 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-

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

(2) that lie took reasonable precautions against committing
the offence charged; and

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

(4) that he gave to the prosecutor all the information in
his power with respect to the persons on whose 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 primd facie be
deemed to be a 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 rnark or forged
trade mark.

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

(i) h 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
cross-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 p7imfi facie evidence of the place or country
in which the goods were made or prioduced.

10. Every person who, being within the. Colony, procures.,
counsels, aids, abets, or is accessory to the commission, without
the Colony, of. any act, which, if committed in the Colony,
would. under this Ordinance be a misdemeanor, shall be guilty
of that misdemeanor as a principal, and be liable to be proceeded
against, tried and convicted in the Colony as if the misdemeanor
had been there committed.

11.-(i) Where, on any information or complaint laid for,
an offence against this Ordinance, a magistrate has issued either





a.su.mmons requiring the defendant ch~rged by such informatio'n
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, on or after issuing the summons or warrant, . or
any other magistrate, is satisfied by information 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 house 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 it 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 there to search. 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 purpose
of its being determined whether 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 convicted, would be liable to forfeiture under;
this Ordinance is unknown or cannot be found in the Colony,
an information or complaint may be laid or made for the purpose
only of enforcing such forfeiture, and a magistrate 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 mag . istrate, unless the owner or any petson 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 for feited under this section, or
under any other provision of this Ordinance, may be destroyed
or otherwise disposed of in such manner as the court or magis-
trate 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..

As amended by No. 2 of 1934 129.3.341.





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:-

(i) all such goods, and also all goods of foreign manufacture.
bearing any' name or trade mark being or purporting to be
the name or trade mark of any manufacturer, dealer, or trader
in the UnitiA Kingdom, unless. such name or trade mark is
accompanied by a definite indication of the country in which
the goods were made or produced, are hereby -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 alhy such goods, or taking any further
proceedings with. a view to the forfeiture there ' of 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 corn-
plied with, and may sa ' tisfy himself in accordance with. those
regulations that the goods are such as are prohibited by this
section to be imported;

(3) (a) where any such goods bearing any such name or
trade mark as aforesaid are imported into. the Colony, and the
Superintendent of Imports and Exports is, upon representations
made to him, satisfied that the use of the name or trade rnark
is fraudulent, the Superintendent of Imports and Exports may

* As amended by No. 38 of 19M [9.11.34] and Law Rev. Ord., 1937.





also require the importer * of the goods, or his agent,'to produce
any documents. in his possession relating to the goods and to
furnish information as to the name and address of the person
by whom the goods were consigned to the Colony and the name
and address of the person to whom the. goods were sent in the'
Colony; and, if the importer or his agent fails within fourteen
days to comply with any such requirement, he shall on summary
conviction be liable for each offence to a fine not exceeding one
thousand dollars;

(b) any information obtained from the importer of the goods
or his agent under paragraph (a), or from any other source,
may be communicated by the Superintendent of Imports and
Exports to any person whose name or trade mark is alleged to
have been used or infringed; 1

. (4) 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 regulations
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;

(5) where there is on any goods a name which is identical
with or 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;

(6) the regulations may apply to all goods t he 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;

(7) the regulations may provide for the informant reim-
bursing 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. 011 the sale or in the contract for. the sate 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, 5 1 ome 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
indicate the particular class or method of manufacture of such
goods, the provisions, of this Ordinance with respect to false
descriptions shall not apply to such trade description when so
applied. Provided that whe.re 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 other 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 rriake 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 construed 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 serviceof His Majesty, or any of
the Royal Family, or any Government departhient, colonial or otherwise, shall
upon summary conviction be liable to a fine not exceeding one hundred
dollars.

19.-(1) The Governor in Council may make regulations providing that in
cases appearing to affect,the general interests of the Colony, or of a section
of the community, or of a trade, the prosecution of offences under this
Ordinance shall be undertaken by the Crown or by any public officer, and
prescribing the conditions on which such prosecutions are to be undertaken.

[(2), rep. Law Revision Ordinance, 1937.]

(3) Nothing in this section shall affect the power of any

person or authority to undertake prosecutions otherwise than
under the said regulations.
[Originally No. 15 of 1890. No. 2 of 1934. No. 38 of 1934. Law Rev. Ord., 1937.] 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. 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. 1 & 2 Geo. 5, c. 31, ss. 1 & 2. 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. Regulations as to official prosecutions. 54 & 55 Vict. C. 15, s. 2.

[Originally No. 15 of 1890. No. 2 of 1934. No. 38 of 1934. Law Rev. Ord., 1937.] 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. 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. 1 & 2 Geo. 5, c. 31, ss. 1 & 2. 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. Regulations as to official prosecutions. 54 & 55 Vict. C. 15, s. 2.

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