MERCHANDISE MARKS ORDINANCE, 1863
Title
MERCHANDISE MARKS ORDINANCE, 1863
Description
ORDINANCE ho: 8 oF: 1863..
Fraudulent Narhing of .hderchandim.
No. 8 of 1863.
An Ordinance to prevent the fraudulent marking of merchandise.
[22nd December, 1863.]
WHEREAS it is expedient to prevent the fraudulent marking of Preamble.
merchandise, and the sale of merchandise falsely marked for
the purpose of fraud : Be it therefore enacted by His Excellency the
Acting Governor of Hongkong, with the advice of the Legislative Council
thereof, as follows
1. In the construction of this Ordinance the word 'Person' shall
Constrar<tion
include any person, whether a subject of Her lZajesty or not, and any
body corporate or body of the like nature, whether constituted according
to the law of this Colony or of any of Her Majesty's Colonies or
Dominions,
or according to the law of any Foreign Country, and also any company,
association, or society of persons, whether the members thereof be
subjects
of Her Majesty or not, or some of such persons subjects of Her Majesty
and some of them not, and whether such body corporate, body of the like
nature, company, association, or society be established or carry on
business
within Her Majesty's Dominions or elsewhere, or partly within Her
Majesty's Dominions and partly elsewhere; the word ' Mark' shall include
any name, signature, word, letter, device, emblem, figure, sign, seal,
stamp,
diagram, label, ticket, or other mark of any other description ; and the -
expression 'Trade Mark' shall include any and every such name,
signature, word, letter, device, emblem, figure, sign, seal, stamp,
diagram,
label, ticket, or other mark as aforesaid lawfully used by any person to
denote any chattel, or any article of trade, manufacture, or merchandise,
to be an article or thing of the manufacture, workmanship, production;
or merchandise of such person, or to be an article or thing of any
peculiar
or particular description made or sold by such person, and shall also
include any name, signature, word, letter, number, figure, mark, or sign
which in pursuance of any Statute or Statutes, Ordinance or Ordinances
for the time being, in force relating to registered designs is to be put
or
placed upon or attached to any chattel or article during the existence or
continuance of any copyright or other sole right acquired under the
provisions. of such Statutes or Ordinances or any of them.
2. Every person. who, with intent to defraud, or' to enable
another Forging a.
to defraud an shall forge or counterfeit or cause or procure .to trade mark
y person, p or falsely
be forged or counterfeited,, any trade mark,, or, shall apply, or cause
or ' ~,al~ ',ark y
rite.
fsee 25 lend
,2s Viet. c. ss.7
of words.
with intent.
to defraud, a
misdemeanor.
Applying a
forged trade
ina,r);, to any
vessel, case,
w~;n~per, fie.,
io'or with
eliieh any
article is sold
or intended
tQ.bo sell; a',
misdemeanor.
!ORDINAI~'CE IV'o. 8 0k, 1863.
Fraudulent Marking of Merchandise.
procure to be applied, any trade mark or any forded or counterfeited
trade-
mark to any chattel or article not being the manufacture, workmanship,
production, or merchandise of any person denoted or intended to be
denoted by such trade mark, or denoted or intended to be denoted by
such forged or counterfeited trade mark, or riot being the manufacture,
workmanship, production, or merchandise of any person whose trade-
mark shall be so forged or counterfeited, or shall apply, or cause or
procure to be applied, any trade mark or any forged or counterfeited trade
mark to any chattel or article, not being the particular or peculiar
descrip-
tion of manufacture, workmanship, production, or merchandise denoted
or intended to be denoted by such trade mark, or by such forged or-
counterfeited trade mark, shall be guilty of a misdemeanor, and every
person so committing a misdemeanor shall also forfeit to Her Majesty
every chattel and article belonging to such person to which he shall have
so unlawfully applied, or caused or procured to be applied, any such trade
mark or forged or counterfeited trade mark as aforesaid, and every
instrument in the possession or power of such person, and by means of
which any such trade mark, or forged or counterfeited trade mark as
aforesaid, shall leave been so applied, and every instrument in the
possession
or power of such person for appling any such trade marl: or forged oi-
~ counterfeited trade marls as aforesaid, shall be forfeited to Her
Majesty;
and the Court before which any such misdemeanor shall be tried may
order such forfeited articles as aforesaid to be destroyed or otherwise
disposed of as such Court shall think fit.
$. Every person who, with intent to defraud, or to enable another-
to defraud, any person, shall apply or cause or procure to be applied any
trade mark or any forged or counterfeited trade mark to any cask, bottle,
stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or
other thing
in, on, or with which any chattel or article shall be intended to be sold
or shall be sold or uttered or exposed for sale, or intended for any
purpose.
of trade or manufacture, or shall enclose or place any chattel or
article,.
or cause or procure any chattel or article to be enclosed or placed, in,
upon,
under, or with any cask, bottle, stopper, vessel, case, cover, Nvrapper,~
band, reel, ticket, label, or other thing to which any, trade mark shall
have been falsely applied, or to which any forged or counterfeited trade w
mark shall have, been applied, or shall apply or attach or cause or
procure-
to be applied or attached to any chattel or article any case, cover, reel,
ticket, label, or other thing to which any trade mark shall have been
ORDINANCE No. 8 -OF 11863.
Fraudulent Harking of Merchandise.
falsely applied, .or to which any forged or counterfeited trade mark shall
have been applied, or shall enclose, place, or attach any chattel or
article,
or cause or procure any chattel or article to be enclosed, placed, or
attached,
in, upon, under, with, or to any cask, bottle, stopper, vessel, case,
cover,
wrapper, band, reel, ticket, label, or other thing having thereon any
trade
1<nark of any other person shall be guilty of a misdemeanor, and every
person so committing a misdemeanor shall also forfeit to Her Majesty every
such chattel and article, and also every such cask, bottle, stopper,
vessel,
case, cover, wrapper, band, reel, ticket, label, or other thing as
aforesaid
in the possession or power of such person; and every other similar cask,
bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label,
or
other thing made to be used in like mariner as aforesaid, and every
instrument in the possession or power of such person, and by means of
which any such trade mark or forged or counterfeited trade mark as
aforesaid shall have been applied, and also every instrument in the
possession or power of such person for al>plyin01 arty such trade mark or
forged or counterfeited trade mark as aforesaid, shall be forfeited to
I-Ter
Majesty; and the Court before which any such misdemeanor shall be
tried play order such forfeited articles as aforesaid to be destroyed or
otherwise disposed of as such Court shall think fit.
4. Every person who, after the thirty-first day of March one
thousand eight hundred and sixty-four, shall sell, utter, or expose either
for sale or for any purpose of trade or manufacture, or cause or procure
to be sold, uttered, or exposed for sale or other purpose as aforesaid,
any
.chattel or article, together with any forged or counterfeited trade mark,
which he shall know to be forged or counterfeited, or together with the
the trade mark of 4ny other person applied or used falsely or wrongfully
or without lawful authority or excuse, knowing such trade marl, of
another person to have been so applied or used as aforesaid, and that
whether any such trade mark or forged or counterfeited trade mark as
aforesaid, together with which any such chattel or article shall be sold,
uttered, or exposed for sale or other purpose as aforesaid, shall be in,
upon, about, or with such chattel or article, or in, upon, about, or with
.any cask, bottle, stopper, vessel, case, cover, wrapper; band, reel,
ticket,
label., or other thing in, upon, about, or with which such chattel or
-article shall be so sold or uttered or exposed for sale or other purpose
as
aforesaid, shall for every such offence forfeit and -pay to Her Majesty a
.sum of money equal to the value of the chattel or article so sold,
uttered,
Solling -
articles with.
forged or False
trade marks
attar 31st
March 1864
Penalty equal
to value of
artiele sold;
and a% sum
not exceed) (1 b
nor less
tlcsclu.
Additions to
and altc:ra-
tiors of trade
marks made
with intent
to defraud to
be deemed
forgeries.
Any person
who' after
31st March
1864, shall
have sold an
article having
m fatso trade
mask to be
bPUnd to give
inlomita,tinn
where he pro.
cured it;
T;over to
Police Magis-
Irate to sum-
mon parties
refusing to
give informa-
tion.
ORDINANCE No:rx.~:~dF 4963.
Fraudulent Marking 'of Merchandise.
offered, or exposed for sale or other purpose as aforesaid, and a further-
sum not exceeding fifty dollars and not less than five dollars.
5. Every addition to and every alteration of, and also every imita-
tion of any trade mark which shall be made, applied, or used with intent
to defraud, or to enable any other person to defraud, or whisk s'uall
cause
a trade mark with such alteration or addition, or shall cause such imita-
tion of a trade mark to resemble any genuine trade mark so or in such
manner as to be calculated or likely to deceive; shall be and be deemed:
to be a false, forded, and counterfeited trade mark within the meaning of
this Ordinance; and every act of making, applying, or otherwise using
any such addition to or alteration of a trade mark or any such imitation
of a trade mark as aforesaid done by any person with intent to defraud,
or to enable any other person to defraud, shall be and be deemed to be
forging and counterfeiting a trade mark within the meaning of this
Ordinance.
S. Where any person who, at any time after the thirty-first day' of
March one thousand eight hundred and sixty-four, slzltll lave sold,
uttered, or exposed for sale or other purpose as aforesaid, or shall have
caused or procured to be sold, uttered, or exposed for sale or other
purpose as aforesaid, any chattel or article, together with any forged or
counterfeited trade marl:, or together with the trade mark of any other
person used without lawful authority or excuse as aforesaid, and that
whether any such trade mark, or such forged or counterfeited trade mark
as aforesaid, be in, upon, about, or with such chattel or article, or in,.
upon, about, or with any cask, bottle, stopper, vessel, case,~cover,
wrapper,
band, reel, ticket, label, or other thing in, upon, about, or with which
such chattel, or article shall have been sold or exposed for sale,' such
person shall be bound upon demand in writing delivered to him or left
for him at his last known dwellinn house or at the place of sale or ex-_
..posure for sale by or on the behalf of any person whose trade mark shall
have been so forned or counterfeited, or used without lawful authority
or excuse as aforesaid, to give to the person requiring the same, or his
attorney or agent, within forty-eight hours after such demand, full infor-
mation in writing, verified by affidavit or declaration according to the
law
-of this Colony made before a Police lZabistrate, of the name and address
of the person from whom he shall have purchased or obtained such chattel
or article, and of the time when he obtained the same; and it shall be
lawful for any Police magistrate, -on information. on oath of.such demand.
No: 8 vv, 18,68,.
Fraudulent Marhiny, of Merchandise.
and refusal, to summon before him, the party refusing, and on being
satisfied that demand so verified as aforesaid ought to be complied with
to order such information to be given within a certain time to be
appointed
by him; and any such party who shall refuse or neglect to comply with
such order shall for every such offence forfeit and pay to Her Majesty
the sum of fifty dollars, and such refusal or neglect shall be prinad
,facie
evidence that the person so refusing or neglecting had full knowledge
that the trade mark, together with which such chattel or article was sold,
uttered, or exposed for sale or other purpose as aforesaid, at the time of
such selling, uttering, or exposing was a forged, counterfeited, and false
trade mark, or was the trade mark of a person which had been used
without lawful authority or excuse, as the case may be.
Every person who, with intent to defraud or to enable another
to defraud, shall put or cause or procure to be put upon any chattel or
article; or upon any cask, bottle, stopper, vessel, case, cover, wrapper,
band, reel, ticket, label, or other thin, together with which any chattel
or article shall be intended to be or shall be sold or uttered or exposed
for
sale, or for any purpose of trade or manufacture, or upon any case, frame,
or other thing in or by means of which any chattel or article shall be in-
tended to be or shall be exposed for sale, any false description,
statement, or
other indication of or respecting the number, quantity, measure, or weight
of such chattel or article, or any part thereof, or of the place or
country
in which such chattel or article shall have been made, manufactured, or
produced, or shall put or cause or procure to be put upon any such
chattel or article, cask, bottle, stopper, vessel, case, cover, wrapper,
band,
reel, ticket, label, or thing as aforesaid, any word, letter, figure,
signature,
or mark for the purpose of falsely indicating such chattel or article, or
the mode of manufacturing or producing the same, or the ornamentation,
shape, or configuration thereof, to- be the subject of any existing
patent,
privilege, or copyright, shall for every such offence forfeit and pay to
Her
Majesty a sum of money equal to the value of the chattel or article so
sgld or uttered or exposed for sale, and a further sure not exceeding
fifty
dollars and not less than five `dollars.
$. Every person who, after the thirty-first day of March one thou-
sand eight hundred and sixty-four, shall sell, utter, or expose for sale
or
for any purpose of trade or manufacture, or shall cause or procure -to be
sold, uttered, or exposed for sale or other purpose as aforesaid, any
chattel
or article upon which shall: have been, to his ,knowledge, put,, or upon
Penalty for
refusal $00.
Marking any
false indica-
tion of quanti-
ty, &c., upon
an article
with intent
to defraud;
penalty a sum
equal to the
value of the
article and the
further sum
not exceeding
$50 and not
less than $b.
Selling or
exposing for,
sale after the.
31st maroh:, -,
1864 articles
with false - -
statement of -
quantities
&e., penalty -
ORDIhTA,NNCE No. 8 of 1863.
Fraudulent Marking of Merchandise.
not more-than any cask, bottle, stopper, vessel, case, cover, wrapper,
band, reel, ticket,'
$han $le5,ss label, or other thing tonether with which such chattel or
article shall be
sold or uttered or .exposed for sale, or other purpose as aforesaid; shall
lave been so put, or upon any case, frame, or other thing used or em=
ployed to expose or exhibit such chattel or article for sale stall have
been
so put, any false description, statement, or other indication of or
respect-
ing the number, quantity, measure, or weight of such chattel or article
or any part thereof, or the place or country in which such chattel -or
article shall have been made, manufactured or produced, shall for every
such offence forfeit and pay to Her Majesty a sum not exceeding fifty
dollars and not less than five dollars.
proviso that g. Provided always, that the provisions of this Ordinance
shall not
it shall not be
an offence to be construed so as to make it any offence fur any person to
apply to any
apply names
or words chattel or article, or to any cask, bottle, stopper, vessel,
case, cover,
known to be
used for in- wrapper, band, reel, ticket, label, or other tiling with
which such chattel
ciicating par-
ticular classes or article shall be sold or intended to be sold, any name,
word, or
of manufac-
tures. expression generally used for indicating such chattel or article to
be of
some particular class or description of manufacture only, or so as to make
it any offence for any person to sell, utter, or offer or expose for sale
any
chattel or article to which, or to any cask, bottle, stopper, vessel,
case,
cover, wrapper, band, reel, ticket, label, or other thing sold therewith,
any such generally used name, word, or expression as aforesaid shall
have been applied.
Description of 10. In every indictment, information, pleading, proceeding,
and
trade marks
and forged document whatsoever in which any trade marls shall be intended
to be
trade marks
in.indict- mentioned it shall be sufficient to mention or state the same
to be a trade
menu, &c.
mark without further or otherwise describing such trade mark, or setting
forth any copy or fac-simile thereof ; and in every indictment,
information,
pleading, proceeding, and document ,whatsoever in which it shall be
untended to mention any forged or counterfeit trade mark it shall be
sufficient to mention or state the same to be a forged or counterfeit
trade
mark without further or otherwise describing such forged or counterfeit
` trade mark, or setting forth any copy or fac-simile thereof
Conviction 11. The provisions in this Ordinance contained of or concerning
any
not to affect
any right or pct, or any proceeding, judgment' or conviction for any act
hereby -
civil remedy, declared to be a misdemeanor or offence, shall not nor shall
any of them
take away, diminish or prejudicially affect any suit, process, proceeding,
right, or remedy which any person aggrieved by such act may be entitled
ORDINANCE No. 8 of 1863.
Fraudulent Harking of Merchandise.
to at Law, in Equity, or otherwise, and shall not nor shall any of them
exempt or excuse any person from answering or .making discovery upon
examination as a witness or upon interrogatories, or otherwise, in any
suit or other civil proceeding: Provided always, that no evidence, state-
ment, or discovery which any person shall be compelled to give or male
shall be admissible in evidence against such person in support of any
indictment or information for <a, rnisdecneanor at Common Law or other-
wise, or of any proceeding under the provisions of this Ordinance.
12. In every indictment, information, conviction, pleading, and
proceeding against any person for and- misdemeanor or other offence
against the provisions of this Ordinance in which it shall be necessary
to,
alle,e or mention an intent to defraud, or to enable another to defraud
it shall be sufficient to allerie or mention that the person accused of
having
clone any act which is hereby made a misdemeanor or other offence did
such act with intent to defraud, or with intent to enable solve other
person to defraud, without alleging or mentioning an intent to defraud
any particular person ; and on the trial of any such indictment or inform.
ation for any such misdemeanor, and on the hear ink; of any information
or charge of or for any such other offence as aforesaid, and on the trial
of any action against any person to recover a penalty for any such other
offence as aforesaid, it shall not be necessary to' prove an intent to
defraud
any particular person, or an intent to enable any particular person to
defraud any particular person, but it shall be sufficient to prove with
respect to every such misdemeanor and offence that the person accused
did the act charged with intent to defraud, or with intent to enable some
other person to defraud, or with the intent that any other person might
be enabled to defraud.
13. Every person who shall. aid, abet, counsel, or procure the
commission of any offence which is by this Ordinance made a misdemeanor
shall also be guilty of a misdemeanor.
14. Every person who shall be convicted or found guilty of any
offence which is by this Ordinance made a rnisdemeanor shall be liable,
at the discretion of the Court and as the Court shall award, to suffer
such
punishment by imprisonment for not more than two years, with or with-
out hard labour, or by fine, or both by imprisonment with or without
hard labour and fine, and also by imprisonment until the fine (if any)
shall have been paid and satisfied.
Alf
Intent to de.
fraud, &c.,
any particular
person need
not be alleged
in tin indict-
ment, &c., or
proved.
Persons who
aid in the
commission of
a. miademeau-
or to be also
guilty.
Punishment
for misde-
meanor
under this
Ordinance.
ORDI N A& GE No. 8 oF 186,
Fraudulent Marking of lilerekandise.
Recovery of 16. In every case in which any person shall have committed or -
penalties. done any offence or act whereby he shall have forfeited or
becorze
liable to pay to Her Majesty any of the penalties or sums of money
mentioned in the provisions of this Ordinance, every such penalty or
sum of money shall or may be recovered in an action of debt, which any
person may as plaintiff' for and on behalf of Her Majesty commence and
prosecute to judgment in the Supreme Court of this Colony, and the
amount of every such penalty or sum of money to be recovered -in any -
such action shall or may be determined by the jury ( if any) sworn to
try arty issue in such action, and if there shall be no such jury then by.
the Court or some other jury, as the Court shall think fit, or instead of
any such action being commenced such penalty or sum of money shall or
may be recovered by a summary proceeding before a Police Magistrate,
who upon proof of the offence, either by the confession of the person
offending or by the oath or affirmation of one or more credible witnesses,
shall convict the offender, and find him liable in the penalty or
penalties
aforesaid as also in expenses. .
16. All penalties sought to be recovered under this Ordinance by a
summary proceeding before a Police Magistrate, shall be sued for and
recovered under Ordinance No. 10 of 1844.
In actions
penalties to
be accounted
for in like
manner as
other movies
payable to
the Crown,
and plaintiffs
to recover full
,coats of suit.
17. In every case in which judgment shall be obtained in any such
action as aforesaid for the amount of any such penalty or suin of money
forfeited to Her Majesty, the amount thereof shall be paid by the defend-
ant to the Registrar of the Court, who shall account for the same in like.
manner as other movies payable to Her Majesty, and, if it be not paid,
may be recovered, or the amount thereof levied, or tile payment thereof
enforced, by execution or other proper proceeding, as money due to Her
Majesty; arid the plaintiff suing on behalf of Her Majesty, upon obtain-
ing judgment, shall be entitled to recover and have execution for all his
costs of suit, which shall include a full indemnity for all costs and
charges
which he shall or may have expended or incurred in, about, or for the
purposes of the action, unless the Court, or the Judge thereof, shall
direct
that costs of the ordinary amount only shall be allowed.
Limitations 18. No person shall commence any action or proceeding for the
`~f action' &e. recovery of any penalty,, or procuring the conviction of
any offender in
manner hereinbefore
after the committing of the offence, or one yeax newt after the first
di=s-
covery thereof by the person proceeding:
ORVINAi'CE NQ. 8 'OF 1863.
IrrauAlent Markiny of Xerchandice.
19. In every case in which at any tithe after the thirty-first day of
March one thousand eight hundred and sixty-four any person shall sell
-or contract to sell (whether by writing or not) to any otter person any
chattel or article with any trade mark thereon, or upon any cask, bottle,
stopper, vessel, case, cover, wrapper, band, reel, ticket, fable, or other
thing together with which such chattel or article shall be sold or con-
tracted to be sold, the sale or contract to sell shall in every such case
be
deemed to have been made with a warranty or contract by the vendor to
or with the vendee that every trade mark upon such chattel or article, or
upon any such cask, bottle, stopper, vessel, case, cover, wrapper, band,
reel, ticket, fable, or other thing as aforesaid, was genuine and true,
and
not forged or counterfeit, and not wrongfully used, unless the contrary
shall be expressed in some writing signed by or on behalf of the vendor,
and delivered to and accepted by the vendee.
20. In every case in which at any time after the thirty-first day of
March one thousand einht hundred and sixty-four any person shall sell
or contract to sell ( whether by writing or not) to any other person any
chattel or article upon which, or upon any cask, bottle, stopper, vessel,
case, cover, wrapper, band, reel, ticket, label, or other thing together
with which such chattel or article shall be sold or contracted to be sold,
any description, statement, or other indication of or respecting the
number, quantity, measure, or weight of such chattel or article, or the
place or country in which such chattel or article shall have been made,
manufactured, or produced, the sale or contract to sell shall in every,
such case be deemed to have been made with a warranty or contract by the
vendor to or with the vendee that no such description, statement, or other
indication tug's in guy material respect false or untrue, unless the
contrary
shall be expressed in some writing signed by or on behalf of the vendor,
and delivered to and accepted by the vendee.
21. In every case in any suit at Law or in Equity against any
person for forging or counterfeiting any trade mark, or for fraudulently
applying any trade mark, to any chattel or article, or for selling,
exposing
for sale, or uttering any chattel or article with any trade mark falsely
or
wrongfully applied thereto, or with any forged or counterfeit trade mark
applied thereto, -or for preventing, the repetition or continualWe of any
such wrongful act, or the committal o£ any similar act, in which the
plaintiff shall obtain a judgment or decree against the defendant, the
Court shall- hav a power to direct every such chattel and article to, be
After 31 st
March,, l $(i4,
vendor of an
-°-
article wif1a a
trade mark to
be deeinea to
contract that
the mark is
genuine.
Vendor of an
article with
description
upon it of its
quantity to
be deemed to
contract that
the descrip-
tion, snag tine.
In suits at
Law or in
Equity
against
persons for
using forged
trade marks,.
Court may ,
order article
to be
destroyed; ..
and map .. ...
award injure=
Lion; &is.
Persons
aggrieved by
forgeries may
.1'CCUVeI'
damages
against the
guilty parties.
ORDINANCE No. 8 0F 1863.
Fraudulent Marking of .Merchandise.
destroyed or otherwise disposed of; and in every such suit in a Court of
I,al the (.)'ourt shall or may upon givinn judgment for the plaintiff
award
a writ of injunction or injunctions to the defendant commanding him, to,
forbear from committing and not by himself or otherwise to repeat op
co>xrmit any offence or wronnful act of the like nature as that of which
he
shall or may have been convicted by such judgment, and any disobedience
of any such writ of injunction or injunctions shall be punished as a con-
tempt of Court; and in every such suit at Law or in Equity it shall be
lawful for the Court or the Judge thereof to make such order as such
Court or Judge shall think fit for the inspection of every or any manufac-
turc or process carried on by the defendant in which any such forded or
counterfeit trade marl:, or any such trade mark us aforesaid, shall be
alleged to be used or applied as aforesaid, and o£ every or any chattel,
article, and thing in the possession or power of the defendant alleged 'to
have thereon or in any way attached thereto any forted or counterfeit
trade mark, or any trade made falsely or wrongfully applied, and every
or any instrument in the possession or power of the defendant used or
intended to be or capable of being used for producing or making any
forged or counterfeit trade mark, or trade mark alleged to be forded or
counterfeit, or for falsely or wrongfully applying any trade mark; and.
any person who shall refixse or neglect to obey any such order shall be
guilty of a contempt of Court.
22, In every case in which any person shall do or cause to be done
any of the wrongful acts following ; (that is to say,) shall fore or
counterfeit any trade mark ; or for the purpose of sale, or for the
purpose
of any manufacture or trade, shall apply any forged or counterfeit trade
mark to any chattel or article, or to any cask, bottle, stopper, vessel,
case,
cover, wrapper, band, reel, ticket, label, or thing in or with which. any
chattel or article shall be intended to be sold or shall be sold or
uttered,
or exposed for sale, or for any purpose of trade or manufacture; or shall.
inclose or place any chattel or article in, upon, vender, or with any
cask,
bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label,
or
other think to which any trade mark shall have been falsely applied, or
to which any forged or counterfeit trade mark shall have been applied;.
or shall apply or attach to any chattel or article, any case, cover, reel,
wrapper, band, ticket, label, or other tuna to which any trade mark.
shall have been falsely applied, or to which any forded or counterfeit.
trade mark shall have been applied; or shall inclose, place, or attach
any-
ORDINANCE No. 8 of 1863.
Fraudulent Marking of Xerchandisc.
chattel or article in, upon, under, with, or to any cask, bottle, stopper,
vessel, case, cover, reel, wrapper, band, ticket, label, or other thin;
having
thereon any trade mark of any other person; every person aggrieved by
any such wrongful act shall be entitled to maintain an action-or suit for.
damages in respect thereof aganist the person who shall be guilty of
having done such act or causing or procuring the same to be done, and
for preventing the repetition or continuance of the wrongful act, and the
committal of any similar act.
23. In every action which any person shall under the provisions
of this Ordinance commence as plaintiff for or on behalf of Her Majesty
for recovering; any penalty or sum of money, if the defendant shall obtain
judgment, be shall be entitled to recover his costs of suit, which shall
include a full indemnity for all the costs, charges, and expenses by hiln
expended or incurred in, about, or for the purposes of the action, unless
the Court or a Judge thereof shall direct that costs of the ordinary
amount only shall be allowed.
24. In any action which any person shall, under the provisions of
this Ordinance, commence as plaintiff for or on behalf of ller Majesty
for recovering any penalty or sum of money, if it shall be shown to the
satisfaction of the Court or the Judge thereof that the person suing as
plaintiff for or on behalf. of Her Majesty bas no ground for alleging that
he has been aggrieved by the committing of the alleged offence in respect
of which the penalty or suin of money is alleged to bave become payable,
and also that the person so snug as plaintiff is not resident within the
jurisdiction of the Court, or not. a person of sufficient property to be
able
to pay any costs which the defendant may recover in the action, the
Court or Judge shall or may order that the plaintiff shall give security
by the bond or recognizance of himself and a surety, or by the deposit of
a sum of money, or otherwise, as the Court or Judge shall think fit, for
the payment to the defendant of any costs which lie may be entitled to
recover in the action.
25. Nothing in this Ordinance contained shall be construed to affect
the rights and privileges of the Corporation of Cutlers of the Liberty of
Hallamsbire in the County of York, nor shall anything in this Ordinance
contained be construed in any way to repeal or make void wiChin this
Colony any of the provisions contained in the fifty-ninth George third,
-chapter seven, intituled ' An Act to regulate the Cutlery Trade in
England.'
Defendant
obtaining a
verdict to
have fall
inaenniity
for cots.
A hlaintitr
suing for a.
blitilty niny
110 compelled
to give seeu-
ritv for costs.
Act not to
affect robe
Corporation
of Cutlers of
Hallalllshlrey
nor to repeal
59 G. 3 c. 7.
No. 8 of 1863
Fraudulent Marking of Merchandise.
26. The expression 'The Merchandise Marks Ordinance 1863,
shall be a sufficient description of this Ordinance.
NOTE.-Repealed as,from the 1st January, 1891, by Ordinance No. 15 of 1890, sub-
jest to H. M.'s right of disallowance of such Ordinance.
Title. [See 25 and 26 Vict. c. 88.]
Preamble.
Construction of words.
Forging a trade mark or falsely applying any trade mark
with intent to defraud, a misdemeanor.
Applying a forged trade mark to any vessel, case, wrapper, &c., in or with which any article is sold or intended to be sold, a misdemeanor.
Selling articles with forged or false trade marks after 31st March 1864 penalty equal to value of article sold, and a sum not exceeeding $50 nor less than $5.
Additions to and alterations of trade marks made with intent to defraud to be deemed forgeries.
Any perosn who, after 31st march 1864, shall have sold and article having a false trade mark to be bound to give information where he procured it;
Power to Police magistrate to summon parties refusing to give information.
Penalty for refusal $50.
Marking any false indication of quantity, &c., upon an article with intent to defraud, penalty a sum equal to the value of the article and the further sum not exceeding $50 and not less than $5.
Selling or exposing for sale after the 31st March 1864 articles with false statement of quantities, &c., penalty
not more than $50 or less than $5.
Proviso that it shall not be an offence to apply names or words known to be used for indicating particular classes of manufactures.
Description of trade marks and forged trade marks in indictments, &c.
Conviction not to affect any right or civil remedy.
Intend to defraud, &c., any particular person need not be alleged in an indictment, &c., or proved.
Persons who aid in the commission of a misdemeanor or to be also guilty.
Punishment for misdemeanor under Ordinance.
Recovery of penalties.
Mode of recovering penalties.
In actions penalties to be accounted for in like manner as other monies payable to the Crown, and plaintiffs to recover full costs of suit.
Limitations of action, &c.
After 31st March, 1864, vendor of an article with a trade mark to be deemed to contract that the mark is genuine.
Vendor of an article with description upon it of its quantity to be deemed to contract that the description was true.
In suits at Law or in Equity against person for using forged trade marks, Court may order article to be destroyed, and may award injunction, &c.
Persons aggrieved by forgeries may recover damages against the guilty parties.
Defendent obtaining a verdict to have full indemnity for costs.
A plaintiff suing for a penalty may be compelled to give security for costs.
Act not to affect the Corporation of Cutlers of Hallamshire, nor to repeal 59 G. 3 c. 7.
572
Short title.
Fraudulent Narhing of .hderchandim.
No. 8 of 1863.
An Ordinance to prevent the fraudulent marking of merchandise.
[22nd December, 1863.]
WHEREAS it is expedient to prevent the fraudulent marking of Preamble.
merchandise, and the sale of merchandise falsely marked for
the purpose of fraud : Be it therefore enacted by His Excellency the
Acting Governor of Hongkong, with the advice of the Legislative Council
thereof, as follows
1. In the construction of this Ordinance the word 'Person' shall
Constrar<tion
include any person, whether a subject of Her lZajesty or not, and any
body corporate or body of the like nature, whether constituted according
to the law of this Colony or of any of Her Majesty's Colonies or
Dominions,
or according to the law of any Foreign Country, and also any company,
association, or society of persons, whether the members thereof be
subjects
of Her Majesty or not, or some of such persons subjects of Her Majesty
and some of them not, and whether such body corporate, body of the like
nature, company, association, or society be established or carry on
business
within Her Majesty's Dominions or elsewhere, or partly within Her
Majesty's Dominions and partly elsewhere; the word ' Mark' shall include
any name, signature, word, letter, device, emblem, figure, sign, seal,
stamp,
diagram, label, ticket, or other mark of any other description ; and the -
expression 'Trade Mark' shall include any and every such name,
signature, word, letter, device, emblem, figure, sign, seal, stamp,
diagram,
label, ticket, or other mark as aforesaid lawfully used by any person to
denote any chattel, or any article of trade, manufacture, or merchandise,
to be an article or thing of the manufacture, workmanship, production;
or merchandise of such person, or to be an article or thing of any
peculiar
or particular description made or sold by such person, and shall also
include any name, signature, word, letter, number, figure, mark, or sign
which in pursuance of any Statute or Statutes, Ordinance or Ordinances
for the time being, in force relating to registered designs is to be put
or
placed upon or attached to any chattel or article during the existence or
continuance of any copyright or other sole right acquired under the
provisions. of such Statutes or Ordinances or any of them.
2. Every person. who, with intent to defraud, or' to enable
another Forging a.
to defraud an shall forge or counterfeit or cause or procure .to trade mark
y person, p or falsely
be forged or counterfeited,, any trade mark,, or, shall apply, or cause
or ' ~,al~ ',ark y
rite.
fsee 25 lend
,2s Viet. c. ss.7
of words.
with intent.
to defraud, a
misdemeanor.
Applying a
forged trade
ina,r);, to any
vessel, case,
w~;n~per, fie.,
io'or with
eliieh any
article is sold
or intended
tQ.bo sell; a',
misdemeanor.
!ORDINAI~'CE IV'o. 8 0k, 1863.
Fraudulent Marking of Merchandise.
procure to be applied, any trade mark or any forded or counterfeited
trade-
mark to any chattel or article not being the manufacture, workmanship,
production, or merchandise of any person denoted or intended to be
denoted by such trade mark, or denoted or intended to be denoted by
such forged or counterfeited trade mark, or riot being the manufacture,
workmanship, production, or merchandise of any person whose trade-
mark shall be so forged or counterfeited, or shall apply, or cause or
procure to be applied, any trade mark or any forged or counterfeited trade
mark to any chattel or article, not being the particular or peculiar
descrip-
tion of manufacture, workmanship, production, or merchandise denoted
or intended to be denoted by such trade mark, or by such forged or-
counterfeited trade mark, shall be guilty of a misdemeanor, and every
person so committing a misdemeanor shall also forfeit to Her Majesty
every chattel and article belonging to such person to which he shall have
so unlawfully applied, or caused or procured to be applied, any such trade
mark or forged or counterfeited trade mark as aforesaid, and every
instrument in the possession or power of such person, and by means of
which any such trade mark, or forged or counterfeited trade mark as
aforesaid, shall leave been so applied, and every instrument in the
possession
or power of such person for appling any such trade marl: or forged oi-
~ counterfeited trade marls as aforesaid, shall be forfeited to Her
Majesty;
and the Court before which any such misdemeanor shall be tried may
order such forfeited articles as aforesaid to be destroyed or otherwise
disposed of as such Court shall think fit.
$. Every person who, with intent to defraud, or to enable another-
to defraud, any person, shall apply or cause or procure to be applied any
trade mark or any forged or counterfeited trade mark to any cask, bottle,
stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or
other thing
in, on, or with which any chattel or article shall be intended to be sold
or shall be sold or uttered or exposed for sale, or intended for any
purpose.
of trade or manufacture, or shall enclose or place any chattel or
article,.
or cause or procure any chattel or article to be enclosed or placed, in,
upon,
under, or with any cask, bottle, stopper, vessel, case, cover, Nvrapper,~
band, reel, ticket, label, or other thing to which any, trade mark shall
have been falsely applied, or to which any forged or counterfeited trade w
mark shall have, been applied, or shall apply or attach or cause or
procure-
to be applied or attached to any chattel or article any case, cover, reel,
ticket, label, or other thing to which any trade mark shall have been
ORDINANCE No. 8 -OF 11863.
Fraudulent Harking of Merchandise.
falsely applied, .or to which any forged or counterfeited trade mark shall
have been applied, or shall enclose, place, or attach any chattel or
article,
or cause or procure any chattel or article to be enclosed, placed, or
attached,
in, upon, under, with, or to any cask, bottle, stopper, vessel, case,
cover,
wrapper, band, reel, ticket, label, or other thing having thereon any
trade
1<nark of any other person shall be guilty of a misdemeanor, and every
person so committing a misdemeanor shall also forfeit to Her Majesty every
such chattel and article, and also every such cask, bottle, stopper,
vessel,
case, cover, wrapper, band, reel, ticket, label, or other thing as
aforesaid
in the possession or power of such person; and every other similar cask,
bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label,
or
other thing made to be used in like mariner as aforesaid, and every
instrument in the possession or power of such person, and by means of
which any such trade mark or forged or counterfeited trade mark as
aforesaid shall have been applied, and also every instrument in the
possession or power of such person for al>plyin01 arty such trade mark or
forged or counterfeited trade mark as aforesaid, shall be forfeited to
I-Ter
Majesty; and the Court before which any such misdemeanor shall be
tried play order such forfeited articles as aforesaid to be destroyed or
otherwise disposed of as such Court shall think fit.
4. Every person who, after the thirty-first day of March one
thousand eight hundred and sixty-four, shall sell, utter, or expose either
for sale or for any purpose of trade or manufacture, or cause or procure
to be sold, uttered, or exposed for sale or other purpose as aforesaid,
any
.chattel or article, together with any forged or counterfeited trade mark,
which he shall know to be forged or counterfeited, or together with the
the trade mark of 4ny other person applied or used falsely or wrongfully
or without lawful authority or excuse, knowing such trade marl, of
another person to have been so applied or used as aforesaid, and that
whether any such trade mark or forged or counterfeited trade mark as
aforesaid, together with which any such chattel or article shall be sold,
uttered, or exposed for sale or other purpose as aforesaid, shall be in,
upon, about, or with such chattel or article, or in, upon, about, or with
.any cask, bottle, stopper, vessel, case, cover, wrapper; band, reel,
ticket,
label., or other thing in, upon, about, or with which such chattel or
-article shall be so sold or uttered or exposed for sale or other purpose
as
aforesaid, shall for every such offence forfeit and -pay to Her Majesty a
.sum of money equal to the value of the chattel or article so sold,
uttered,
Solling -
articles with.
forged or False
trade marks
attar 31st
March 1864
Penalty equal
to value of
artiele sold;
and a% sum
not exceed) (1 b
nor less
tlcsclu.
Additions to
and altc:ra-
tiors of trade
marks made
with intent
to defraud to
be deemed
forgeries.
Any person
who' after
31st March
1864, shall
have sold an
article having
m fatso trade
mask to be
bPUnd to give
inlomita,tinn
where he pro.
cured it;
T;over to
Police Magis-
Irate to sum-
mon parties
refusing to
give informa-
tion.
ORDINANCE No:rx.~:~dF 4963.
Fraudulent Marking 'of Merchandise.
offered, or exposed for sale or other purpose as aforesaid, and a further-
sum not exceeding fifty dollars and not less than five dollars.
5. Every addition to and every alteration of, and also every imita-
tion of any trade mark which shall be made, applied, or used with intent
to defraud, or to enable any other person to defraud, or whisk s'uall
cause
a trade mark with such alteration or addition, or shall cause such imita-
tion of a trade mark to resemble any genuine trade mark so or in such
manner as to be calculated or likely to deceive; shall be and be deemed:
to be a false, forded, and counterfeited trade mark within the meaning of
this Ordinance; and every act of making, applying, or otherwise using
any such addition to or alteration of a trade mark or any such imitation
of a trade mark as aforesaid done by any person with intent to defraud,
or to enable any other person to defraud, shall be and be deemed to be
forging and counterfeiting a trade mark within the meaning of this
Ordinance.
S. Where any person who, at any time after the thirty-first day' of
March one thousand eight hundred and sixty-four, slzltll lave sold,
uttered, or exposed for sale or other purpose as aforesaid, or shall have
caused or procured to be sold, uttered, or exposed for sale or other
purpose as aforesaid, any chattel or article, together with any forged or
counterfeited trade marl:, or together with the trade mark of any other
person used without lawful authority or excuse as aforesaid, and that
whether any such trade mark, or such forged or counterfeited trade mark
as aforesaid, be in, upon, about, or with such chattel or article, or in,.
upon, about, or with any cask, bottle, stopper, vessel, case,~cover,
wrapper,
band, reel, ticket, label, or other thing in, upon, about, or with which
such chattel, or article shall have been sold or exposed for sale,' such
person shall be bound upon demand in writing delivered to him or left
for him at his last known dwellinn house or at the place of sale or ex-_
..posure for sale by or on the behalf of any person whose trade mark shall
have been so forned or counterfeited, or used without lawful authority
or excuse as aforesaid, to give to the person requiring the same, or his
attorney or agent, within forty-eight hours after such demand, full infor-
mation in writing, verified by affidavit or declaration according to the
law
-of this Colony made before a Police lZabistrate, of the name and address
of the person from whom he shall have purchased or obtained such chattel
or article, and of the time when he obtained the same; and it shall be
lawful for any Police magistrate, -on information. on oath of.such demand.
No: 8 vv, 18,68,.
Fraudulent Marhiny, of Merchandise.
and refusal, to summon before him, the party refusing, and on being
satisfied that demand so verified as aforesaid ought to be complied with
to order such information to be given within a certain time to be
appointed
by him; and any such party who shall refuse or neglect to comply with
such order shall for every such offence forfeit and pay to Her Majesty
the sum of fifty dollars, and such refusal or neglect shall be prinad
,facie
evidence that the person so refusing or neglecting had full knowledge
that the trade mark, together with which such chattel or article was sold,
uttered, or exposed for sale or other purpose as aforesaid, at the time of
such selling, uttering, or exposing was a forged, counterfeited, and false
trade mark, or was the trade mark of a person which had been used
without lawful authority or excuse, as the case may be.
Every person who, with intent to defraud or to enable another
to defraud, shall put or cause or procure to be put upon any chattel or
article; or upon any cask, bottle, stopper, vessel, case, cover, wrapper,
band, reel, ticket, label, or other thin, together with which any chattel
or article shall be intended to be or shall be sold or uttered or exposed
for
sale, or for any purpose of trade or manufacture, or upon any case, frame,
or other thing in or by means of which any chattel or article shall be in-
tended to be or shall be exposed for sale, any false description,
statement, or
other indication of or respecting the number, quantity, measure, or weight
of such chattel or article, or any part thereof, or of the place or
country
in which such chattel or article shall have been made, manufactured, or
produced, or shall put or cause or procure to be put upon any such
chattel or article, cask, bottle, stopper, vessel, case, cover, wrapper,
band,
reel, ticket, label, or thing as aforesaid, any word, letter, figure,
signature,
or mark for the purpose of falsely indicating such chattel or article, or
the mode of manufacturing or producing the same, or the ornamentation,
shape, or configuration thereof, to- be the subject of any existing
patent,
privilege, or copyright, shall for every such offence forfeit and pay to
Her
Majesty a sum of money equal to the value of the chattel or article so
sgld or uttered or exposed for sale, and a further sure not exceeding
fifty
dollars and not less than five `dollars.
$. Every person who, after the thirty-first day of March one thou-
sand eight hundred and sixty-four, shall sell, utter, or expose for sale
or
for any purpose of trade or manufacture, or shall cause or procure -to be
sold, uttered, or exposed for sale or other purpose as aforesaid, any
chattel
or article upon which shall: have been, to his ,knowledge, put,, or upon
Penalty for
refusal $00.
Marking any
false indica-
tion of quanti-
ty, &c., upon
an article
with intent
to defraud;
penalty a sum
equal to the
value of the
article and the
further sum
not exceeding
$50 and not
less than $b.
Selling or
exposing for,
sale after the.
31st maroh:, -,
1864 articles
with false - -
statement of -
quantities
&e., penalty -
ORDIhTA,NNCE No. 8 of 1863.
Fraudulent Marking of Merchandise.
not more-than any cask, bottle, stopper, vessel, case, cover, wrapper,
band, reel, ticket,'
$han $le5,ss label, or other thing tonether with which such chattel or
article shall be
sold or uttered or .exposed for sale, or other purpose as aforesaid; shall
lave been so put, or upon any case, frame, or other thing used or em=
ployed to expose or exhibit such chattel or article for sale stall have
been
so put, any false description, statement, or other indication of or
respect-
ing the number, quantity, measure, or weight of such chattel or article
or any part thereof, or the place or country in which such chattel -or
article shall have been made, manufactured or produced, shall for every
such offence forfeit and pay to Her Majesty a sum not exceeding fifty
dollars and not less than five dollars.
proviso that g. Provided always, that the provisions of this Ordinance
shall not
it shall not be
an offence to be construed so as to make it any offence fur any person to
apply to any
apply names
or words chattel or article, or to any cask, bottle, stopper, vessel,
case, cover,
known to be
used for in- wrapper, band, reel, ticket, label, or other tiling with
which such chattel
ciicating par-
ticular classes or article shall be sold or intended to be sold, any name,
word, or
of manufac-
tures. expression generally used for indicating such chattel or article to
be of
some particular class or description of manufacture only, or so as to make
it any offence for any person to sell, utter, or offer or expose for sale
any
chattel or article to which, or to any cask, bottle, stopper, vessel,
case,
cover, wrapper, band, reel, ticket, label, or other thing sold therewith,
any such generally used name, word, or expression as aforesaid shall
have been applied.
Description of 10. In every indictment, information, pleading, proceeding,
and
trade marks
and forged document whatsoever in which any trade marls shall be intended
to be
trade marks
in.indict- mentioned it shall be sufficient to mention or state the same
to be a trade
menu, &c.
mark without further or otherwise describing such trade mark, or setting
forth any copy or fac-simile thereof ; and in every indictment,
information,
pleading, proceeding, and document ,whatsoever in which it shall be
untended to mention any forged or counterfeit trade mark it shall be
sufficient to mention or state the same to be a forged or counterfeit
trade
mark without further or otherwise describing such forged or counterfeit
` trade mark, or setting forth any copy or fac-simile thereof
Conviction 11. The provisions in this Ordinance contained of or concerning
any
not to affect
any right or pct, or any proceeding, judgment' or conviction for any act
hereby -
civil remedy, declared to be a misdemeanor or offence, shall not nor shall
any of them
take away, diminish or prejudicially affect any suit, process, proceeding,
right, or remedy which any person aggrieved by such act may be entitled
ORDINANCE No. 8 of 1863.
Fraudulent Harking of Merchandise.
to at Law, in Equity, or otherwise, and shall not nor shall any of them
exempt or excuse any person from answering or .making discovery upon
examination as a witness or upon interrogatories, or otherwise, in any
suit or other civil proceeding: Provided always, that no evidence, state-
ment, or discovery which any person shall be compelled to give or male
shall be admissible in evidence against such person in support of any
indictment or information for <a, rnisdecneanor at Common Law or other-
wise, or of any proceeding under the provisions of this Ordinance.
12. In every indictment, information, conviction, pleading, and
proceeding against any person for and- misdemeanor or other offence
against the provisions of this Ordinance in which it shall be necessary
to,
alle,e or mention an intent to defraud, or to enable another to defraud
it shall be sufficient to allerie or mention that the person accused of
having
clone any act which is hereby made a misdemeanor or other offence did
such act with intent to defraud, or with intent to enable solve other
person to defraud, without alleging or mentioning an intent to defraud
any particular person ; and on the trial of any such indictment or inform.
ation for any such misdemeanor, and on the hear ink; of any information
or charge of or for any such other offence as aforesaid, and on the trial
of any action against any person to recover a penalty for any such other
offence as aforesaid, it shall not be necessary to' prove an intent to
defraud
any particular person, or an intent to enable any particular person to
defraud any particular person, but it shall be sufficient to prove with
respect to every such misdemeanor and offence that the person accused
did the act charged with intent to defraud, or with intent to enable some
other person to defraud, or with the intent that any other person might
be enabled to defraud.
13. Every person who shall. aid, abet, counsel, or procure the
commission of any offence which is by this Ordinance made a misdemeanor
shall also be guilty of a misdemeanor.
14. Every person who shall be convicted or found guilty of any
offence which is by this Ordinance made a rnisdemeanor shall be liable,
at the discretion of the Court and as the Court shall award, to suffer
such
punishment by imprisonment for not more than two years, with or with-
out hard labour, or by fine, or both by imprisonment with or without
hard labour and fine, and also by imprisonment until the fine (if any)
shall have been paid and satisfied.
Alf
Intent to de.
fraud, &c.,
any particular
person need
not be alleged
in tin indict-
ment, &c., or
proved.
Persons who
aid in the
commission of
a. miademeau-
or to be also
guilty.
Punishment
for misde-
meanor
under this
Ordinance.
ORDI N A& GE No. 8 oF 186,
Fraudulent Marking of lilerekandise.
Recovery of 16. In every case in which any person shall have committed or -
penalties. done any offence or act whereby he shall have forfeited or
becorze
liable to pay to Her Majesty any of the penalties or sums of money
mentioned in the provisions of this Ordinance, every such penalty or
sum of money shall or may be recovered in an action of debt, which any
person may as plaintiff' for and on behalf of Her Majesty commence and
prosecute to judgment in the Supreme Court of this Colony, and the
amount of every such penalty or sum of money to be recovered -in any -
such action shall or may be determined by the jury ( if any) sworn to
try arty issue in such action, and if there shall be no such jury then by.
the Court or some other jury, as the Court shall think fit, or instead of
any such action being commenced such penalty or sum of money shall or
may be recovered by a summary proceeding before a Police Magistrate,
who upon proof of the offence, either by the confession of the person
offending or by the oath or affirmation of one or more credible witnesses,
shall convict the offender, and find him liable in the penalty or
penalties
aforesaid as also in expenses. .
16. All penalties sought to be recovered under this Ordinance by a
summary proceeding before a Police Magistrate, shall be sued for and
recovered under Ordinance No. 10 of 1844.
In actions
penalties to
be accounted
for in like
manner as
other movies
payable to
the Crown,
and plaintiffs
to recover full
,coats of suit.
17. In every case in which judgment shall be obtained in any such
action as aforesaid for the amount of any such penalty or suin of money
forfeited to Her Majesty, the amount thereof shall be paid by the defend-
ant to the Registrar of the Court, who shall account for the same in like.
manner as other movies payable to Her Majesty, and, if it be not paid,
may be recovered, or the amount thereof levied, or tile payment thereof
enforced, by execution or other proper proceeding, as money due to Her
Majesty; arid the plaintiff suing on behalf of Her Majesty, upon obtain-
ing judgment, shall be entitled to recover and have execution for all his
costs of suit, which shall include a full indemnity for all costs and
charges
which he shall or may have expended or incurred in, about, or for the
purposes of the action, unless the Court, or the Judge thereof, shall
direct
that costs of the ordinary amount only shall be allowed.
Limitations 18. No person shall commence any action or proceeding for the
`~f action' &e. recovery of any penalty,, or procuring the conviction of
any offender in
manner hereinbefore
after the committing of the offence, or one yeax newt after the first
di=s-
covery thereof by the person proceeding:
ORVINAi'CE NQ. 8 'OF 1863.
IrrauAlent Markiny of Xerchandice.
19. In every case in which at any tithe after the thirty-first day of
March one thousand eight hundred and sixty-four any person shall sell
-or contract to sell (whether by writing or not) to any otter person any
chattel or article with any trade mark thereon, or upon any cask, bottle,
stopper, vessel, case, cover, wrapper, band, reel, ticket, fable, or other
thing together with which such chattel or article shall be sold or con-
tracted to be sold, the sale or contract to sell shall in every such case
be
deemed to have been made with a warranty or contract by the vendor to
or with the vendee that every trade mark upon such chattel or article, or
upon any such cask, bottle, stopper, vessel, case, cover, wrapper, band,
reel, ticket, fable, or other thing as aforesaid, was genuine and true,
and
not forged or counterfeit, and not wrongfully used, unless the contrary
shall be expressed in some writing signed by or on behalf of the vendor,
and delivered to and accepted by the vendee.
20. In every case in which at any time after the thirty-first day of
March one thousand einht hundred and sixty-four any person shall sell
or contract to sell ( whether by writing or not) to any other person any
chattel or article upon which, or upon any cask, bottle, stopper, vessel,
case, cover, wrapper, band, reel, ticket, label, or other thing together
with which such chattel or article shall be sold or contracted to be sold,
any description, statement, or other indication of or respecting the
number, quantity, measure, or weight of such chattel or article, or the
place or country in which such chattel or article shall have been made,
manufactured, or produced, the sale or contract to sell shall in every,
such case be deemed to have been made with a warranty or contract by the
vendor to or with the vendee that no such description, statement, or other
indication tug's in guy material respect false or untrue, unless the
contrary
shall be expressed in some writing signed by or on behalf of the vendor,
and delivered to and accepted by the vendee.
21. In every case in any suit at Law or in Equity against any
person for forging or counterfeiting any trade mark, or for fraudulently
applying any trade mark, to any chattel or article, or for selling,
exposing
for sale, or uttering any chattel or article with any trade mark falsely
or
wrongfully applied thereto, or with any forged or counterfeit trade mark
applied thereto, -or for preventing, the repetition or continualWe of any
such wrongful act, or the committal o£ any similar act, in which the
plaintiff shall obtain a judgment or decree against the defendant, the
Court shall- hav a power to direct every such chattel and article to, be
After 31 st
March,, l $(i4,
vendor of an
-°-
article wif1a a
trade mark to
be deeinea to
contract that
the mark is
genuine.
Vendor of an
article with
description
upon it of its
quantity to
be deemed to
contract that
the descrip-
tion, snag tine.
In suits at
Law or in
Equity
against
persons for
using forged
trade marks,.
Court may ,
order article
to be
destroyed; ..
and map .. ...
award injure=
Lion; &is.
Persons
aggrieved by
forgeries may
.1'CCUVeI'
damages
against the
guilty parties.
ORDINANCE No. 8 0F 1863.
Fraudulent Marking of .Merchandise.
destroyed or otherwise disposed of; and in every such suit in a Court of
I,al the (.)'ourt shall or may upon givinn judgment for the plaintiff
award
a writ of injunction or injunctions to the defendant commanding him, to,
forbear from committing and not by himself or otherwise to repeat op
co>xrmit any offence or wronnful act of the like nature as that of which
he
shall or may have been convicted by such judgment, and any disobedience
of any such writ of injunction or injunctions shall be punished as a con-
tempt of Court; and in every such suit at Law or in Equity it shall be
lawful for the Court or the Judge thereof to make such order as such
Court or Judge shall think fit for the inspection of every or any manufac-
turc or process carried on by the defendant in which any such forded or
counterfeit trade marl:, or any such trade mark us aforesaid, shall be
alleged to be used or applied as aforesaid, and o£ every or any chattel,
article, and thing in the possession or power of the defendant alleged 'to
have thereon or in any way attached thereto any forted or counterfeit
trade mark, or any trade made falsely or wrongfully applied, and every
or any instrument in the possession or power of the defendant used or
intended to be or capable of being used for producing or making any
forged or counterfeit trade mark, or trade mark alleged to be forded or
counterfeit, or for falsely or wrongfully applying any trade mark; and.
any person who shall refixse or neglect to obey any such order shall be
guilty of a contempt of Court.
22, In every case in which any person shall do or cause to be done
any of the wrongful acts following ; (that is to say,) shall fore or
counterfeit any trade mark ; or for the purpose of sale, or for the
purpose
of any manufacture or trade, shall apply any forged or counterfeit trade
mark to any chattel or article, or to any cask, bottle, stopper, vessel,
case,
cover, wrapper, band, reel, ticket, label, or thing in or with which. any
chattel or article shall be intended to be sold or shall be sold or
uttered,
or exposed for sale, or for any purpose of trade or manufacture; or shall.
inclose or place any chattel or article in, upon, vender, or with any
cask,
bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label,
or
other think to which any trade mark shall have been falsely applied, or
to which any forged or counterfeit trade mark shall have been applied;.
or shall apply or attach to any chattel or article, any case, cover, reel,
wrapper, band, ticket, label, or other tuna to which any trade mark.
shall have been falsely applied, or to which any forded or counterfeit.
trade mark shall have been applied; or shall inclose, place, or attach
any-
ORDINANCE No. 8 of 1863.
Fraudulent Marking of Xerchandisc.
chattel or article in, upon, under, with, or to any cask, bottle, stopper,
vessel, case, cover, reel, wrapper, band, ticket, label, or other thin;
having
thereon any trade mark of any other person; every person aggrieved by
any such wrongful act shall be entitled to maintain an action-or suit for.
damages in respect thereof aganist the person who shall be guilty of
having done such act or causing or procuring the same to be done, and
for preventing the repetition or continuance of the wrongful act, and the
committal of any similar act.
23. In every action which any person shall under the provisions
of this Ordinance commence as plaintiff for or on behalf of Her Majesty
for recovering; any penalty or sum of money, if the defendant shall obtain
judgment, be shall be entitled to recover his costs of suit, which shall
include a full indemnity for all the costs, charges, and expenses by hiln
expended or incurred in, about, or for the purposes of the action, unless
the Court or a Judge thereof shall direct that costs of the ordinary
amount only shall be allowed.
24. In any action which any person shall, under the provisions of
this Ordinance, commence as plaintiff for or on behalf of ller Majesty
for recovering any penalty or sum of money, if it shall be shown to the
satisfaction of the Court or the Judge thereof that the person suing as
plaintiff for or on behalf. of Her Majesty bas no ground for alleging that
he has been aggrieved by the committing of the alleged offence in respect
of which the penalty or suin of money is alleged to bave become payable,
and also that the person so snug as plaintiff is not resident within the
jurisdiction of the Court, or not. a person of sufficient property to be
able
to pay any costs which the defendant may recover in the action, the
Court or Judge shall or may order that the plaintiff shall give security
by the bond or recognizance of himself and a surety, or by the deposit of
a sum of money, or otherwise, as the Court or Judge shall think fit, for
the payment to the defendant of any costs which lie may be entitled to
recover in the action.
25. Nothing in this Ordinance contained shall be construed to affect
the rights and privileges of the Corporation of Cutlers of the Liberty of
Hallamsbire in the County of York, nor shall anything in this Ordinance
contained be construed in any way to repeal or make void wiChin this
Colony any of the provisions contained in the fifty-ninth George third,
-chapter seven, intituled ' An Act to regulate the Cutlery Trade in
England.'
Defendant
obtaining a
verdict to
have fall
inaenniity
for cots.
A hlaintitr
suing for a.
blitilty niny
110 compelled
to give seeu-
ritv for costs.
Act not to
affect robe
Corporation
of Cutlers of
Hallalllshlrey
nor to repeal
59 G. 3 c. 7.
No. 8 of 1863
Fraudulent Marking of Merchandise.
26. The expression 'The Merchandise Marks Ordinance 1863,
shall be a sufficient description of this Ordinance.
NOTE.-Repealed as,from the 1st January, 1891, by Ordinance No. 15 of 1890, sub-
jest to H. M.'s right of disallowance of such Ordinance.
Title. [See 25 and 26 Vict. c. 88.]
Preamble.
Construction of words.
Forging a trade mark or falsely applying any trade mark
with intent to defraud, a misdemeanor.
Applying a forged trade mark to any vessel, case, wrapper, &c., in or with which any article is sold or intended to be sold, a misdemeanor.
Selling articles with forged or false trade marks after 31st March 1864 penalty equal to value of article sold, and a sum not exceeeding $50 nor less than $5.
Additions to and alterations of trade marks made with intent to defraud to be deemed forgeries.
Any perosn who, after 31st march 1864, shall have sold and article having a false trade mark to be bound to give information where he procured it;
Power to Police magistrate to summon parties refusing to give information.
Penalty for refusal $50.
Marking any false indication of quantity, &c., upon an article with intent to defraud, penalty a sum equal to the value of the article and the further sum not exceeding $50 and not less than $5.
Selling or exposing for sale after the 31st March 1864 articles with false statement of quantities, &c., penalty
not more than $50 or less than $5.
Proviso that it shall not be an offence to apply names or words known to be used for indicating particular classes of manufactures.
Description of trade marks and forged trade marks in indictments, &c.
Conviction not to affect any right or civil remedy.
Intend to defraud, &c., any particular person need not be alleged in an indictment, &c., or proved.
Persons who aid in the commission of a misdemeanor or to be also guilty.
Punishment for misdemeanor under Ordinance.
Recovery of penalties.
Mode of recovering penalties.
In actions penalties to be accounted for in like manner as other monies payable to the Crown, and plaintiffs to recover full costs of suit.
Limitations of action, &c.
After 31st March, 1864, vendor of an article with a trade mark to be deemed to contract that the mark is genuine.
Vendor of an article with description upon it of its quantity to be deemed to contract that the description was true.
In suits at Law or in Equity against person for using forged trade marks, Court may order article to be destroyed, and may award injunction, &c.
Persons aggrieved by forgeries may recover damages against the guilty parties.
Defendent obtaining a verdict to have full indemnity for costs.
A plaintiff suing for a penalty may be compelled to give security for costs.
Act not to affect the Corporation of Cutlers of Hallamshire, nor to repeal 59 G. 3 c. 7.
572
Short title.
Abstract
Title. [See 25 and 26 Vict. c. 88.]
Preamble.
Construction of words.
Forging a trade mark or falsely applying any trade mark
with intent to defraud, a misdemeanor.
Applying a forged trade mark to any vessel, case, wrapper, &c., in or with which any article is sold or intended to be sold, a misdemeanor.
Selling articles with forged or false trade marks after 31st March 1864 penalty equal to value of article sold, and a sum not exceeeding $50 nor less than $5.
Additions to and alterations of trade marks made with intent to defraud to be deemed forgeries.
Any perosn who, after 31st march 1864, shall have sold and article having a false trade mark to be bound to give information where he procured it;
Power to Police magistrate to summon parties refusing to give information.
Penalty for refusal $50.
Marking any false indication of quantity, &c., upon an article with intent to defraud, penalty a sum equal to the value of the article and the further sum not exceeding $50 and not less than $5.
Selling or exposing for sale after the 31st March 1864 articles with false statement of quantities, &c., penalty
not more than $50 or less than $5.
Proviso that it shall not be an offence to apply names or words known to be used for indicating particular classes of manufactures.
Description of trade marks and forged trade marks in indictments, &c.
Conviction not to affect any right or civil remedy.
Intend to defraud, &c., any particular person need not be alleged in an indictment, &c., or proved.
Persons who aid in the commission of a misdemeanor or to be also guilty.
Punishment for misdemeanor under Ordinance.
Recovery of penalties.
Mode of recovering penalties.
In actions penalties to be accounted for in like manner as other monies payable to the Crown, and plaintiffs to recover full costs of suit.
Limitations of action, &c.
After 31st March, 1864, vendor of an article with a trade mark to be deemed to contract that the mark is genuine.
Vendor of an article with description upon it of its quantity to be deemed to contract that the description was true.
In suits at Law or in Equity against person for using forged trade marks, Court may order article to be destroyed, and may award injunction, &c.
Persons aggrieved by forgeries may recover damages against the guilty parties.
Defendent obtaining a verdict to have full indemnity for costs.
A plaintiff suing for a penalty may be compelled to give security for costs.
Act not to affect the Corporation of Cutlers of Hallamshire, nor to repeal 59 G. 3 c. 7.
572
Short title.
Preamble.
Construction of words.
Forging a trade mark or falsely applying any trade mark
with intent to defraud, a misdemeanor.
Applying a forged trade mark to any vessel, case, wrapper, &c., in or with which any article is sold or intended to be sold, a misdemeanor.
Selling articles with forged or false trade marks after 31st March 1864 penalty equal to value of article sold, and a sum not exceeeding $50 nor less than $5.
Additions to and alterations of trade marks made with intent to defraud to be deemed forgeries.
Any perosn who, after 31st march 1864, shall have sold and article having a false trade mark to be bound to give information where he procured it;
Power to Police magistrate to summon parties refusing to give information.
Penalty for refusal $50.
Marking any false indication of quantity, &c., upon an article with intent to defraud, penalty a sum equal to the value of the article and the further sum not exceeding $50 and not less than $5.
Selling or exposing for sale after the 31st March 1864 articles with false statement of quantities, &c., penalty
not more than $50 or less than $5.
Proviso that it shall not be an offence to apply names or words known to be used for indicating particular classes of manufactures.
Description of trade marks and forged trade marks in indictments, &c.
Conviction not to affect any right or civil remedy.
Intend to defraud, &c., any particular person need not be alleged in an indictment, &c., or proved.
Persons who aid in the commission of a misdemeanor or to be also guilty.
Punishment for misdemeanor under Ordinance.
Recovery of penalties.
Mode of recovering penalties.
In actions penalties to be accounted for in like manner as other monies payable to the Crown, and plaintiffs to recover full costs of suit.
Limitations of action, &c.
After 31st March, 1864, vendor of an article with a trade mark to be deemed to contract that the mark is genuine.
Vendor of an article with description upon it of its quantity to be deemed to contract that the description was true.
In suits at Law or in Equity against person for using forged trade marks, Court may order article to be destroyed, and may award injunction, &c.
Persons aggrieved by forgeries may recover damages against the guilty parties.
Defendent obtaining a verdict to have full indemnity for costs.
A plaintiff suing for a penalty may be compelled to give security for costs.
Act not to affect the Corporation of Cutlers of Hallamshire, nor to repeal 59 G. 3 c. 7.
572
Short title.
Identifier
https://oelawhk.lib.hku.hk/items/show/187
Edition
1890
Volume
v1
Cap / Ordinance No.
No. 8 of 1863
Number of Pages
12
Files
Collection
Historical Laws of Hong Kong Online
Citation
“MERCHANDISE MARKS ORDINANCE, 1863,” Historical Laws of Hong Kong Online, accessed March 5, 2025, https://oelawhk.lib.hku.hk/items/show/187.
