MERCHANDISE MARKS ORDINANCE, 1890
Title
MERCHANDISE MARKS ORDINANCE, 1890
Description
ORDINANCE No. 4 OF 1890
Merchandise Marks
AN ORDINANCE to amend the law relating to Fraudulent Marks
on Merchandise.
[1st January, 1891.]
Be it enacted by the Governor of Hongkong, with the advice and
consent of the Legislative Council thereof, as follows:--
1.This Ordinance may be citied as the Merchandise Marks Ordinance,
1890.
2.-(1.)For the purposes of this Ordinance,
'Trade Mark' means a trade mark registered in the Register of
Trade Marks kept under any Ordinance in force in this Colony or
under the Patents, Designs, and Trade Marks Acts, 1883 to 1888,
of the Imperial Parliament, 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 103 of the Patents. Designs, and Trade Marks Act,1883,
of the Imperial Parliament are, under Order-in-Council, for the
time being applicable;
'Trade Description' means any description, statement, or othet
indication, direct or indiect,--
(a.)as to the number, quantity, measure, guage, or weight of any
goods; or
(b.)as to the place or country in which any goods were made or
produced; or
(c.)as to the mode of manufacturing or producung any goods; or
(d.)as to the material of which any goods are composed; or
(e.)as to any goods being the subject of an existing patent, privi-
legem 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 matters shall be deemed to be a trade description
within the meaning of this Ordinance;
'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 description being a false trade description
withtin the meaning of this Ordinance;
'Goods: mean anything which is the subject of trade, manufac-
ture, or merchandise:
'Person', 'Manufacturer', 'Dealer', or 'Trader', and 'Pro-
prietor' include any body of persons, sorporate or unincorporate;
'Name' includes any abbreviation of a name.
(2.)The provisions of this Ordinance respecting the application of a
false trade description to goods shall extend to the application to goods
of any such figures, words, or marks, or arrangement or combination
thereof, whether including a trade mark or not, as are reasonable cal-
culated to lead persons to believe that the goods are the manufacture or
merchandise they really are.
(3.)The provisions of this Ordinance respecting the application 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 trade description, and for the purposes of this enactment the
expression '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 those of a fictitoas person or of some person not
bona 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 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
(f.)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 defrand, be guilty of an offence against
this Ordinance.
(2.)Every person who sells, or exposes for, or has in his possession
for sale, or any purpose of trade or manufacture, any goods or things to
which any forged trade mark or false trade description is applied, or to
which any trade mark or mark so nearly resembling a trade mark as to
be calculated to deceive is falsely applied, as the case may be, shall, un-
less he proves--
(a.)that, having taken all reasonable precautions against commit-
ting an offence against this Ordinance, he had, at the time of
the commission of the alleged offence, no reason to suspect the
genuineness of the trade mark, mark, or trade description; and
(b.)that, on demand made by or on behalf of the prosecutor, he gave
all the information in his power with respect to the persons from
whom he obtained such goods or things; or
(c.)that otherwise he had acted innocently,
be guilty of an offence against this Ordinance.
(3.)Every person who is guilty of an offence against this Ordinance
shall be liable,--
(a.)on conviction before the Supreme Court, to imprisonment, with
or without hard labour, for any term not exceeding two years,
or to a fine, or to both imprisonment and fine; and
(b.)on summary conviction before a Magistrate, to imprisonment,
with or without hard labour, for any term not exceeding four
months or to a fine not exceeding one hundred dollars, and, in
the case of a second or subsequent conviction, to imprisonment,
with or without hard labour, for any term not exceeding six
months or to a fine not exceeding two hundred and fifty dol-
lars; and,
(c.)in any case, to forfeit to Her Majesty every chattel, article,
instrument, or thing by means of or in relation to which the
offence has been committed.
(4.)The Court or Magistrate begore which or whom any person is
convicted under this section may order any forfeitef articles to be de-
stroyed or otherwise disposed of as the Court or Magistrate thinks fit.
(5.)Any offence for which a person is under this Ordinance liable to
punishment on summary conviction may be prosecuted, and any fine
imposed may be enforced and recovered, and any articles liable to be
forfeited may be forfeited in manner provided by any Ordinance for the
time being in force regulating the practice and procedure before Magis-
trates in relation to offences punishable on summary conviction: Pro-
vided that 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 informed of his right to be trial on indictment
before the Supreme Court, and, if he requires to be so tried, be com-
mitted for trial and be so tried accordingly.
4.A person shall be deemed a forge a trade mark who either,-
(1.)without the assent of the proprietor of the trade mark, makes
that trade mark or a mark so nearly resembling that trade mark
as to be calculated to deceive; or
(2.)Falsifies any genuine trade mark, whether by alteration, addition,
effacement, or 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 pro-
prietor shall lie on the defendant.
5.-(1.)A person shall be deemed to apply a trade mark or mark or
trade decription to goods who--
(a.)applies it to the goods themselves; or
(b.)applies it to any covering, label, reel, or other thing in or with
which the goods are sold or exposed or had in possession for any
purpose of sale, trade, or manufacture; or
(c.)places, encloses, or annexes any goods which are sold or ex-
posed 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.)uses a trade mark or mark or trade description in any manner
calaulated 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.)The expression 'covering' includes any stopper, cask, bottle,
vessel, box, cover, capsule, case, frame, or wrapper; and the expression
'label' includes any band or ticket.
(3.)A trade mark, or mark, or trade description shall be deemed to
be applied whether it is woven, impressed, or otherwise worked into, or
annexed, or affixed to the goods, or to any covering, label, reel, or other
thing.
(4.)A person shall be deemed to falsely apply to goods a trade mark
or mark who, without the assent of the proprietor of a trade mark,
applies such trade mark or a mark so nearly resembling it as to be cal-
culated to deceive, but in any prosecution for falsely applying a trade
mark or mark to goods the burden of proving the assent of the proprie-
tor shall lie on the defendant.
6.Where a defendant is charged with making any die, block, ma-
chine, 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 caus-
ing any of the things mentioned in this section to be done, and proves--
(1.)that, in the ordinary course of his business, he is employed, on
behalf of other persons, to make dies, blocks, machines, or other
instruments for making, or being used in making, trade marks,
or, as the case may be, to apply marks or descriptions to goods, and
that in the case which is the subject of the charge he was so
employed by some person resident in the Colony, and was not
interested in the goods by way of profit or commission dependent
on the sale of the goods; and
(2.)that he took reasonable precautions against committing the
offence charged; and
(3.)that he had, at the time of the commission of the allegal offence,
no reason to suspect the genuineness of the 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 was given due notice to
hint that he will reply 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 de-
scription of the country in which the watch was made, and the watch
bears no description of the country where it was made, those words or
marks shall prima facie be deemed to be 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 appled,
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 the expression 'watch' means
all that portion of a watch which is not the watch case.
8.In any information, indietment, pleading, proceeding, or document,
in which any trade mark or forged trade mark is intended to be men-
tioned, it shall be sufficient, without further description and without any
copy or facsimile, to state that trade mark or forged trade mark to be a
trade mark or fored trade mark.
9.In any prosecution for an offence against this Ordinance,-
(1.)a defendant and hid 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 printed facie evidence of the place or country in which the
goods were made or produced.
10.Every person who, being within the Colony, procures, counsels,
aids, abets, or 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 gulity of that misdemeanor as a principal, and be
liable to be proceeded against, tried, and convicteed in the Colony as if
the misdemeanor had been there committed.
11.-(1.)Where, on any information or complaint laid for an offence
against this Ordinance, a Magistrate has issued either a summons re-
quiring the defendant charged by such information or complaint to
appear to answer to the same, or has issued a warrant for the arrest of
such defendant, and either the said Magistrate or any other Magistrate,
on or after issuing the summons or warrant, is satisfied by 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 com-
mitted 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 under his hand, by virtue of which it shall be lawful for
any constable or peace officer named or referred to in the warrant to enter
such house, premuses, or place at any resonable time by day, and to
search therefor 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, 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 Magistrate, unless the
owner or any person on his behalf, or other person interested in the
goods or things, shows cause to the contrary, may order such goods or
things or any of them to be forfeited.
(3.)Any goods or things forfeited under this section, or under any
other provision of this Ordinance, may be destroyed or otherwise dis-
posed of in such manner as 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 obliter-
ated), award to any innocent party any loss which he may have
innocently sustained in dealing with such goods.
12.On any prosecution under this Ordinance, the Court or Magistrate
may order costs to be paid to the defendant by the prosecutor or to the
prosecutor by the defendant, having regard to the information given by
and the conduct of the defendant and prosecutor respectively.
13.No presecytion for an offence against this Ordinance shall be com-
menced 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, whichover 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:Be it therefore enacted as follows:-
(1.)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 United
Kingdom, unless such name or trade mark is accompanied by a de-
finite indication of the country in which the goods were made or pro-
duced 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 any such goods, or taking any further proceed-
ings with a view to the forfeiture thereof under this Ordinance,
the Superintendent od Imports and Exports may require the regu-
lations under this section, whether as to information, security,
conditions, or other matters, to be complied with, and may satisfy
himself in accordance with those regulations that the goods are
such as are prohibited by this section to be imported;
(3.)the Governor-in-Council may from time to time make, rovoke,
and vary regulations, either general or special, respecting the de-
tention and forfeiture of goods the importation of which is prohib-
ited 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;
(4.)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 King-
dom, 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 King-
dom;
(5.)the regulations may apply to all goods the importation of which
is prohibited by this section, or different regulations may be made
respecting different classes of such goods or of offences in relation
to such goods;
(6.)
the regulations may provide for the imformant reimbursing the
Superintendent of Imports and Exports all expenses and damages
incurred in respect of any detention made on his information, and
of any proceedings consequent on such detention; and
(7.)all regulations under this section shall be punished in The
Gazette.
15.On the sale or in the contract for the sale of any goods to which
a trade mark, or mark, or trade description has been applied, the vendor
shall be deemed to warrant that the mark is a genuine trade mark and
not forged or falsely applied, or that the trade Ordinance, unless the con-
trary is expressed in some writing signed by or on behalf of the vendor
and delivered at the time of the sale or contract to and accepted by the
vendee.
16.Where, at the commencement of this Ordinance, a trade descrip-
tion 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 trade descriptions shall not apply to such trade
description when so applied:Provided that where such trade description
includes the name of a place or country, and is calculated to mislead as
to the place or country where the goods to which it is applied were
actually made or produced, and the goods are not actually made or pro-
duced in that place or country, this section shall not apply unless there
is added to the trade descriptionm 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
make a complete discovery or to answer any question or interrogatory
in any action, but such discovery or answer shall not admissible in
evidence against auch 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 prosecuton or punishment any servant of a master resident
in the Colony who bond fide acts in obedience to the instruction of such
master, and who, on demand made by or on behalf of the prosecutor,
has given full information as to his master.
18. Every person who falsely represents that any goods are made by
a person holding a Royal Warrant, or for the service of Her Majesty, or
any of the Royal Family, or any Government Department, Colonial or
otherwise, shall, on summary conviction, be liable to a penalty not exceeding
one hundred dollars.
A.D. 1890. Ordinance No. 15 of 1890. Short title. Interpretation of terms. 50 & 51 Vict.c. 28 s. 3. 46 & 47 Vict.c. 57. Offences as to trade marks and trade descriptions. 50 & 51 Vict.c. 28 s. 2. See Ordinance No. 3 of 1890. Forging trade mark. 50 & 51 Vict.c. 28 s. 4. Applying mark or description. Ib.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. Ib.s.7. Description of trade mark in pleading. Ib.s.9. Rules as to evidence. Ib.s.10. Punishment of necessary. 50 & 51 Vict.c. 28 s. 11. Issue of and proceedings on search warrant. Ib.s.12. Costs of defence or prosecution. 50 & 51 Vict.c. 28 s. 14. Limitation of prosecution. Ib.s.15. Prohibition of importation of goods liable to forfeiture under the Ordinance. Ib.s.16. Implied warranty on sale of marked goods. 50 & 51 Vict.c. 28 s. 17. Provisions of the Ordinance as to false description not to apply in certin cases. Ib.s.18. Savings. Ib.s.19. False representation as to Royal Warrant, etc. 50 & 51 Vict.c. 28 s. 20.
Merchandise Marks
AN ORDINANCE to amend the law relating to Fraudulent Marks
on Merchandise.
[1st January, 1891.]
Be it enacted by the Governor of Hongkong, with the advice and
consent of the Legislative Council thereof, as follows:--
1.This Ordinance may be citied as the Merchandise Marks Ordinance,
1890.
2.-(1.)For the purposes of this Ordinance,
'Trade Mark' means a trade mark registered in the Register of
Trade Marks kept under any Ordinance in force in this Colony or
under the Patents, Designs, and Trade Marks Acts, 1883 to 1888,
of the Imperial Parliament, 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 103 of the Patents. Designs, and Trade Marks Act,1883,
of the Imperial Parliament are, under Order-in-Council, for the
time being applicable;
'Trade Description' means any description, statement, or othet
indication, direct or indiect,--
(a.)as to the number, quantity, measure, guage, or weight of any
goods; or
(b.)as to the place or country in which any goods were made or
produced; or
(c.)as to the mode of manufacturing or producung any goods; or
(d.)as to the material of which any goods are composed; or
(e.)as to any goods being the subject of an existing patent, privi-
legem 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 matters shall be deemed to be a trade description
within the meaning of this Ordinance;
'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 description being a false trade description
withtin the meaning of this Ordinance;
'Goods: mean anything which is the subject of trade, manufac-
ture, or merchandise:
'Person', 'Manufacturer', 'Dealer', or 'Trader', and 'Pro-
prietor' include any body of persons, sorporate or unincorporate;
'Name' includes any abbreviation of a name.
(2.)The provisions of this Ordinance respecting the application of a
false trade description to goods shall extend to the application to goods
of any such figures, words, or marks, or arrangement or combination
thereof, whether including a trade mark or not, as are reasonable cal-
culated to lead persons to believe that the goods are the manufacture or
merchandise they really are.
(3.)The provisions of this Ordinance respecting the application 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 trade description, and for the purposes of this enactment the
expression '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 those of a fictitoas person or of some person not
bona 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 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
(f.)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 defrand, be guilty of an offence against
this Ordinance.
(2.)Every person who sells, or exposes for, or has in his possession
for sale, or any purpose of trade or manufacture, any goods or things to
which any forged trade mark or false trade description is applied, or to
which any trade mark or mark so nearly resembling a trade mark as to
be calculated to deceive is falsely applied, as the case may be, shall, un-
less he proves--
(a.)that, having taken all reasonable precautions against commit-
ting an offence against this Ordinance, he had, at the time of
the commission of the alleged offence, no reason to suspect the
genuineness of the trade mark, mark, or trade description; and
(b.)that, on demand made by or on behalf of the prosecutor, he gave
all the information in his power with respect to the persons from
whom he obtained such goods or things; or
(c.)that otherwise he had acted innocently,
be guilty of an offence against this Ordinance.
(3.)Every person who is guilty of an offence against this Ordinance
shall be liable,--
(a.)on conviction before the Supreme Court, to imprisonment, with
or without hard labour, for any term not exceeding two years,
or to a fine, or to both imprisonment and fine; and
(b.)on summary conviction before a Magistrate, to imprisonment,
with or without hard labour, for any term not exceeding four
months or to a fine not exceeding one hundred dollars, and, in
the case of a second or subsequent conviction, to imprisonment,
with or without hard labour, for any term not exceeding six
months or to a fine not exceeding two hundred and fifty dol-
lars; and,
(c.)in any case, to forfeit to Her Majesty every chattel, article,
instrument, or thing by means of or in relation to which the
offence has been committed.
(4.)The Court or Magistrate begore which or whom any person is
convicted under this section may order any forfeitef articles to be de-
stroyed or otherwise disposed of as the Court or Magistrate thinks fit.
(5.)Any offence for which a person is under this Ordinance liable to
punishment on summary conviction may be prosecuted, and any fine
imposed may be enforced and recovered, and any articles liable to be
forfeited may be forfeited in manner provided by any Ordinance for the
time being in force regulating the practice and procedure before Magis-
trates in relation to offences punishable on summary conviction: Pro-
vided that 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 informed of his right to be trial on indictment
before the Supreme Court, and, if he requires to be so tried, be com-
mitted for trial and be so tried accordingly.
4.A person shall be deemed a forge a trade mark who either,-
(1.)without the assent of the proprietor of the trade mark, makes
that trade mark or a mark so nearly resembling that trade mark
as to be calculated to deceive; or
(2.)Falsifies any genuine trade mark, whether by alteration, addition,
effacement, or 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 pro-
prietor shall lie on the defendant.
5.-(1.)A person shall be deemed to apply a trade mark or mark or
trade decription to goods who--
(a.)applies it to the goods themselves; or
(b.)applies it to any covering, label, reel, or other thing in or with
which the goods are sold or exposed or had in possession for any
purpose of sale, trade, or manufacture; or
(c.)places, encloses, or annexes any goods which are sold or ex-
posed 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.)uses a trade mark or mark or trade description in any manner
calaulated 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.)The expression 'covering' includes any stopper, cask, bottle,
vessel, box, cover, capsule, case, frame, or wrapper; and the expression
'label' includes any band or ticket.
(3.)A trade mark, or mark, or trade description shall be deemed to
be applied whether it is woven, impressed, or otherwise worked into, or
annexed, or affixed to the goods, or to any covering, label, reel, or other
thing.
(4.)A person shall be deemed to falsely apply to goods a trade mark
or mark who, without the assent of the proprietor of a trade mark,
applies such trade mark or a mark so nearly resembling it as to be cal-
culated to deceive, but in any prosecution for falsely applying a trade
mark or mark to goods the burden of proving the assent of the proprie-
tor shall lie on the defendant.
6.Where a defendant is charged with making any die, block, ma-
chine, 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 caus-
ing any of the things mentioned in this section to be done, and proves--
(1.)that, in the ordinary course of his business, he is employed, on
behalf of other persons, to make dies, blocks, machines, or other
instruments for making, or being used in making, trade marks,
or, as the case may be, to apply marks or descriptions to goods, and
that in the case which is the subject of the charge he was so
employed by some person resident in the Colony, and was not
interested in the goods by way of profit or commission dependent
on the sale of the goods; and
(2.)that he took reasonable precautions against committing the
offence charged; and
(3.)that he had, at the time of the commission of the allegal offence,
no reason to suspect the genuineness of the 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 was given due notice to
hint that he will reply 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 de-
scription of the country in which the watch was made, and the watch
bears no description of the country where it was made, those words or
marks shall prima facie be deemed to be 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 appled,
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 the expression 'watch' means
all that portion of a watch which is not the watch case.
8.In any information, indietment, pleading, proceeding, or document,
in which any trade mark or forged trade mark is intended to be men-
tioned, it shall be sufficient, without further description and without any
copy or facsimile, to state that trade mark or forged trade mark to be a
trade mark or fored trade mark.
9.In any prosecution for an offence against this Ordinance,-
(1.)a defendant and hid 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 printed facie evidence of the place or country in which the
goods were made or produced.
10.Every person who, being within the Colony, procures, counsels,
aids, abets, or 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 gulity of that misdemeanor as a principal, and be
liable to be proceeded against, tried, and convicteed in the Colony as if
the misdemeanor had been there committed.
11.-(1.)Where, on any information or complaint laid for an offence
against this Ordinance, a Magistrate has issued either a summons re-
quiring the defendant charged by such information or complaint to
appear to answer to the same, or has issued a warrant for the arrest of
such defendant, and either the said Magistrate or any other Magistrate,
on or after issuing the summons or warrant, is satisfied by 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 com-
mitted 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 under his hand, by virtue of which it shall be lawful for
any constable or peace officer named or referred to in the warrant to enter
such house, premuses, or place at any resonable time by day, and to
search therefor 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, 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 Magistrate, unless the
owner or any person on his behalf, or other person interested in the
goods or things, shows cause to the contrary, may order such goods or
things or any of them to be forfeited.
(3.)Any goods or things forfeited under this section, or under any
other provision of this Ordinance, may be destroyed or otherwise dis-
posed of in such manner as 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 obliter-
ated), award to any innocent party any loss which he may have
innocently sustained in dealing with such goods.
12.On any prosecution under this Ordinance, the Court or Magistrate
may order costs to be paid to the defendant by the prosecutor or to the
prosecutor by the defendant, having regard to the information given by
and the conduct of the defendant and prosecutor respectively.
13.No presecytion for an offence against this Ordinance shall be com-
menced 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, whichover 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:Be it therefore enacted as follows:-
(1.)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 United
Kingdom, unless such name or trade mark is accompanied by a de-
finite indication of the country in which the goods were made or pro-
duced 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 any such goods, or taking any further proceed-
ings with a view to the forfeiture thereof under this Ordinance,
the Superintendent od Imports and Exports may require the regu-
lations under this section, whether as to information, security,
conditions, or other matters, to be complied with, and may satisfy
himself in accordance with those regulations that the goods are
such as are prohibited by this section to be imported;
(3.)the Governor-in-Council may from time to time make, rovoke,
and vary regulations, either general or special, respecting the de-
tention and forfeiture of goods the importation of which is prohib-
ited 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;
(4.)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 King-
dom, 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 King-
dom;
(5.)the regulations may apply to all goods the importation of which
is prohibited by this section, or different regulations may be made
respecting different classes of such goods or of offences in relation
to such goods;
(6.)
the regulations may provide for the imformant reimbursing the
Superintendent of Imports and Exports all expenses and damages
incurred in respect of any detention made on his information, and
of any proceedings consequent on such detention; and
(7.)all regulations under this section shall be punished in The
Gazette.
15.On the sale or in the contract for the sale of any goods to which
a trade mark, or mark, or trade description has been applied, the vendor
shall be deemed to warrant that the mark is a genuine trade mark and
not forged or falsely applied, or that the trade Ordinance, unless the con-
trary is expressed in some writing signed by or on behalf of the vendor
and delivered at the time of the sale or contract to and accepted by the
vendee.
16.Where, at the commencement of this Ordinance, a trade descrip-
tion 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 trade descriptions shall not apply to such trade
description when so applied:Provided that where such trade description
includes the name of a place or country, and is calculated to mislead as
to the place or country where the goods to which it is applied were
actually made or produced, and the goods are not actually made or pro-
duced in that place or country, this section shall not apply unless there
is added to the trade descriptionm 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
make a complete discovery or to answer any question or interrogatory
in any action, but such discovery or answer shall not admissible in
evidence against auch 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 prosecuton or punishment any servant of a master resident
in the Colony who bond fide acts in obedience to the instruction of such
master, and who, on demand made by or on behalf of the prosecutor,
has given full information as to his master.
18. Every person who falsely represents that any goods are made by
a person holding a Royal Warrant, or for the service of Her Majesty, or
any of the Royal Family, or any Government Department, Colonial or
otherwise, shall, on summary conviction, be liable to a penalty not exceeding
one hundred dollars.
A.D. 1890. Ordinance No. 15 of 1890. Short title. Interpretation of terms. 50 & 51 Vict.c. 28 s. 3. 46 & 47 Vict.c. 57. Offences as to trade marks and trade descriptions. 50 & 51 Vict.c. 28 s. 2. See Ordinance No. 3 of 1890. Forging trade mark. 50 & 51 Vict.c. 28 s. 4. Applying mark or description. Ib.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. Ib.s.7. Description of trade mark in pleading. Ib.s.9. Rules as to evidence. Ib.s.10. Punishment of necessary. 50 & 51 Vict.c. 28 s. 11. Issue of and proceedings on search warrant. Ib.s.12. Costs of defence or prosecution. 50 & 51 Vict.c. 28 s. 14. Limitation of prosecution. Ib.s.15. Prohibition of importation of goods liable to forfeiture under the Ordinance. Ib.s.16. Implied warranty on sale of marked goods. 50 & 51 Vict.c. 28 s. 17. Provisions of the Ordinance as to false description not to apply in certin cases. Ib.s.18. Savings. Ib.s.19. False representation as to Royal Warrant, etc. 50 & 51 Vict.c. 28 s. 20.
Abstract
A.D. 1890. Ordinance No. 15 of 1890. Short title. Interpretation of terms. 50 & 51 Vict.c. 28 s. 3. 46 & 47 Vict.c. 57. Offences as to trade marks and trade descriptions. 50 & 51 Vict.c. 28 s. 2. See Ordinance No. 3 of 1890. Forging trade mark. 50 & 51 Vict.c. 28 s. 4. Applying mark or description. Ib.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. Ib.s.7. Description of trade mark in pleading. Ib.s.9. Rules as to evidence. Ib.s.10. Punishment of necessary. 50 & 51 Vict.c. 28 s. 11. Issue of and proceedings on search warrant. Ib.s.12. Costs of defence or prosecution. 50 & 51 Vict.c. 28 s. 14. Limitation of prosecution. Ib.s.15. Prohibition of importation of goods liable to forfeiture under the Ordinance. Ib.s.16. Implied warranty on sale of marked goods. 50 & 51 Vict.c. 28 s. 17. Provisions of the Ordinance as to false description not to apply in certin cases. Ib.s.18. Savings. Ib.s.19. False representation as to Royal Warrant, etc. 50 & 51 Vict.c. 28 s. 20.
Identifier
https://oelawhk.lib.hku.hk/items/show/655
Edition
1901
Volume
v1
Subsequent Cap No.
362
Cap / Ordinance No.
No. 4 of 1890
Number of Pages
9
Files
Collection
Historical Laws of Hong Kong Online
Citation
“MERCHANDISE MARKS ORDINANCE, 1890,” Historical Laws of Hong Kong Online, accessed March 10, 2025, https://oelawhk.lib.hku.hk/items/show/655.
