MERCHANDISE MARKS ORDINANCE, 1890
Title
MERCHANDISE MARKS ORDINANCE, 1890
Description
No. 4 of 1890.
To amend the law relating to Fraudulent Marks on Merchandise.
[1st January, 1891.]
1. The Merchandise Marks Oridinance, 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, or kept under or preserved
by the Trade Marks Act, 1905, and includes any trade mark
which, either with or without registrate, is protected by law in
any British possession or Foreign State to which the provisions of
section 91 and the proviso to section 98 (1) of the Patents and
Designs Act, 1907, are, under Order in Council, for the time being
applicable:
'Trade description' means any description, statement, or
other indication, direct or indirect,-
(a) as to the number, quantity, measure, gauge, 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 producing 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,
privilege, or copyright;
and the use of any figuree, 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
make the description false in a material respect; and the
fact that a trade description is a trade mark, or part of a trade
mark, shall not prevent such trade description being a false trade
description within the meaning of this Ordinance:
'Goods' means anything which is the subject of trade,
manufacture, or merchandise:
'Person', 'manufacturer', 'dealer', or 'trader', and
'proprietor', include any body of persons, corporate 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
reasonably calculate to lead persons to believe that the goods are
the manufacture or merchandise of some person other than the person
whose manufacture or merchandise they really are.
(3) The 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 person applied, in like manner as if
such name or initials were 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 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 authorised the use of such
name or initials; and
(c) are either of a fictitious person or of some person not
bona fide carrying on business in connection with such goods.
3.-(1) Every person who-
(a) forges any trade mark; or
(b) falsely applies to goods any trade mark or any mark so nearly
resembling a trade mark as to be calculated to deceive; or
(c) makes any die, block, machine, or other instrument for the
purpose of forging, or of being used for forging, a trade mark; or
(d) applies any false trade description to goods; or
(e) disposes of or has in his possession any die, block, machine,
or other instrument for the purpose of forging a trade mark; or
(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 defraud, be guilty of an
offence.
(2) Every person who sells, or exposes for, or has in his
possession for sale, or any purposes of trade or manufacture, any
goods or things to which any forged trade mark or false trade description
is applied, or to which any trade mark or mark so nearly
resembling a trade mark as to be calculated to deceive is falsely
applied, as the case may be, shall, unless he proves-
(a) that, having taken all reasonable precautions against committing
an offence against this Ordinance, he had, at the time
of the commission of the alleged offence, no reason to suspect the
genuineness of the trade mark, mark, or trade description; and
(b) that, on demand made by or on behalf of the prosecutor, he
gave all the information in his power with respect to the persons
from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently,
be guilty of an offence.
(3) Every person who is guilty of an offence against this Ordinance
shall be liable,-
(a) on conviction before the Supreme Court, to imprisonment
for any term not exceeding 2 years, and to a fine not exceeding
2,000 dollars; and
(b) on summary conviction, to imprisonment for any term not
exceeding 4 months, or to a fine not exceeding 100 dollars, and, in
the case of a second or subsequent conviction, to imprisonment for
any term not exceeding 6 months, or to a fine not exceeding 250
dollars; and,
(c) in any case, to forfeit every chattel, article, instrument, or
thing by means of or in relation to which the offences has been committed.
(4) The Court or Magistrate before which or whom any person
is convicted under this section may order any forfeited articles to
be destroyed or otherwise disposed of as the Court or Magistrate
thinks fit.
(5) A person charged with an offence under this section before a
Magistrate shall, on appearing before such Magistrate and before
the charge is gone into, be informated of his right to be tried
on indictment before the Supreme Court, and, if he requires to be
so tried, be committed for trial and be so tried accordingly.
4. A person shall be deemed to forge a trade mark who either,-
(1) without the assent of the proprietor of the trade mark, make
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 or proving the assent
of the proprietor shall lie on the defendant.
5.-(1) A person shall be deemed to apply a trade mark or mark
or trade description to goods who-
(a) applies it to the goods themselves; or
(b) applies it to any covering, label, reel, or other thing in or
with which the goods are sold or exposed or had in possession for
any purpose of sale, trade, or manufacture; or
(c) places, encloses, or annexes any goods which are sold or exposed
or had in possession for any purpose of sale, trade, or manufacture,
in, with, or to any covering, label, reel, or other thing to
which a trade mark or trade description has been applied; or
(d) uses a trade mark or mark or trade description in any manner
calculated to lead to the belief that the goods in connexion with
whcih 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 'lable' 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 calculated to deceive, but in any prosecution for falsely
applying a trade mark or mark to goods the burden of proving the
assent of the proprietor shall lie on the defendant.
6. Where a defendant is charged with making any die, block,
machinc, or other instrument for the purpose of forging, or being
used for forging, a trade mark, or with falsely applying to goods any
trade mark or any mark so nearly resembling a trade mark as to be
calculated to deceive, or with applying to goods any false trade
description, or causing any of the things mentioned in this section
to be done, and proves-
(1) that, in the ordinary course of his business, he is employed,
on behalf of other 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 alleged
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 has given due
notice to him that he will rely on the above defence.
7.-(1) Where a watch ease has thereon any words or marks
which constitute,,or are by coinmon repute considered as constitut-
ing, a description of the country in which the watch was made, and
the watch bears no descripbon of the cotintry 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 pro-
visions of this Ordinance with respect to goods to which a false trade
description has been applied, and with respect to selling or exposing
for or having in possession for sale or any purpose, of trade or manu-
facture, goods with a false trade description shall apply accordingly.
(2) For the purposes of this section the expression 'watch'
weans all that portion of a watch which is not the watch case.
8. In any information, indictment, pleading proceeding, or docit-
ment, in which any trade mark or forged trade mark is intended to
be mentioned, it shall be sufficient, without further description and
without any copy or facsimile, to state that frade mark or forged
trade mark to be a trade mark or forged trade mark.
9. In any prosecution for an offence against this Ordinance,-
(1) a defendant and his wife or her husband, as the case may be,
may, if the defendant thinks fit, be called as a witness, and, if
called, shall be sworn and examined, and may be 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 ship-
ment shall be prima facie evidence of the place or country in which
the goods were made or produced.
10. Every person who, being within the Colony, procures,
counsels, aids, abets, or is accessory to the commission, without
the Colony, of any act, which, if committed in the Colony, would
under this Ordinance be a misdemeanor, shall be guilty of that
mlsdenieanor as a principal, and be liable to be proceeded against,
tried and convicted in the Colony as if the misdemeanor had been
there committed.
11L-(1) Where, on any information or complaint laid for an
offence against this Ordinance, a Magistrate has issued either a
summons requiring the defendant charged by such information or
complaint to appear to answer to the same, or has issued a warrant
for the arrest of such defendant, and either the said Magistrate or
any other Magistrate, on or after issuing the summons or Warrant,
is satisfied by information upon oath that there is reasonable, cause
to suspect that any goods or things by means of or in relation to
which such offerice has been committed are in any house or premises
of the defendant, or otherwise in his possession or tinder his control
in any place, such Magistrate may issue a warrant, by virtue of
which it shall be lawful for any constable named or referred to in
the warrant to enter such house, premises, or place at any reason
able 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
* As amencled by 'il;o. 1 of 1912,
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 com-
plaint may be laid or made for the purpose only of enforcing such
forfeittire, 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
disposed of in such manner as the Court or Magistrate by which
or whom the same are forfeited may direct; and the Court or
Magistrate may, out of any proceeds which may be realized by the
disposition of such goods or thingfs (all trade Marks and trade
descriptions being first obliterated), award to any innocent party any
loss which lie may have innocently sustained in dealing with such
groods.
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 pro-
secutor respectively.
13. No prosecution for an offence against, this Ordinance shall be
commenced after the expiration of 3 years next after the commission
of the offence, or one year next after the first discovery thereof by
the prosecutor, whichever expiration first happens.
14. Whereas it is expedient to make provision for prohib-
iting the importation of goods which, if sold, wofild be liable to
forfeiture under this Ordinance :-
(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
* As amended by No. 50 of 1911, No. 1 of 1912 and Ne. 2 of 1912.
Kingdom, unless such name or trade mark is accompanied by a
definite indication of the country in which the goods were inade oi
produced are hereby prohibited to be imported into the Colony, and
if any such goods are imported or brought into the Colony contrary
to the prohibition herein contained, such goods shall be forfeited
and may be destroyed or otherwise, disposed of as the Superinten-
dent of Imports and Exports may direct
(2) before detaining any such goods, or taking any further
proceedings with a view to the forreiture thereof under this Ordi-
nance, the Superintendent of Imports and Exports may require the
regulations under this scelion, whether as to information, security,
conditions, or other matters, to be complied with, and may satisly
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 make regulations, either general
or special, respecting the detention and forfeiture of goods the im-
portation of which is prohibited by this section, and the conditions,
if any, to be fulfilled before such detention and forfeiture, and inay
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
Kingdom, that name, unless accompanied by the name of the
country in which such place, is situate, shall be treated for the pur-
poses of this section as if it were the naine of a place in the United
Kingdom ;
(5) the regulations may apply to all goods the importation
of which is prohibited by this section, or different regulations may
be made respecting different classes of such goods or of offences in
relation to such goods;
(6) the regulations may provide for the informant reimbursing
the Superintendent of Imports and Exports all expenses and
damages incurred in respect of any detention made on his informa-
tion, and any proceedings consequent on such detention.
15. On the sale or in the contract for the sale of any goods
to which a trade mark, or mark, or trade description has been
applied, the vendor shall be, deemed to warrant that the mark is a
genuine trade mark and not forged or falsely applied, or that the
trade description is not a false trade description within the meaning
of this Ordinance, unless the contrary is expressed in some writing
signed by or on behalf of the vendor and delivered at the time of
the sale or contract to and accepted by the vendee.
16. Where, at the commencement of this ordinance, a trade des-
cription is lawfully and generally applied to goods of a particular
class, or manufactured by a particular method, to indictate the
particualr class metod of manufacture of such goods, the pro-
visions of this Ordinance with respect to false descriptions shall not
apply to such trade description when so applied: Provided that
where such trade description includes the name of a place or
country, and is calculated to mislead as to the place or country
where the goods to which it is applied were actually made or pro-
duced, and the goods are, not actually made or produced in that
place or country, this section shall not apply unless there is added
to the trade description, immediately before or after the name of
that place or country, in an equally conspicuous manner with that
name, the name of the place or country in which the goods were
actually made or produced, with a statement that they were made
or produced there.
17-(1) This Ordinance shallt 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 inter-
rogatory in any action, but such discovery any answer shall not be
admissible in evidence agalnst such in any prsecution for an
offence against this Ordinance.
(3) Nothing in this Ordinance shall be construed so as to render
liable, to any prosecution or punishment any servant of a master
resident in the Colony who bona fide acts in obedience to the
instructions of such master, and who, on deniand made by or
on behalf of the prosecutor, has given full information as to his
master.
18. Every person who falsely represents that any goods are made
by a person holding a Royal Warrant, or for the service of His
Majesty, or any of the Royal Family, or any Government depart-
ment, colonial or otherwise, shall, on summary conviction, be liable
to a fine not exceeding 100 dollars.
* AS amended by No. 80 of 1911 and No. 51 of 1911.
Short title. Interpretation of terms. [50 & 51 Vict.c. 28 s. 3.] [5 Edw. VII.c. 15.] [7 Edw. VII.c. 29.] Offences as to trade marks and trade descriptions. [50 & 51 Vict.c. 28 s. 2.] Forging trade mark. [50 & 51 Vict.c. 28 s.4.] Applying mark or description. [ib.s.5.] Exemption of certain person 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. [50 & 51 Vict.c. 28 s. 9.] Rules as to evidence. [ib.s.10.] Punishment of accessory. [ib.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. [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 certain cases. [50 & 51 Vict.c. 28 s. 18.] Savings. [ib.s.19.] False representation as to Royal Warrant, etc. [ib.s.20.]
To amend the law relating to Fraudulent Marks on Merchandise.
[1st January, 1891.]
1. The Merchandise Marks Oridinance, 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, or kept under or preserved
by the Trade Marks Act, 1905, and includes any trade mark
which, either with or without registrate, is protected by law in
any British possession or Foreign State to which the provisions of
section 91 and the proviso to section 98 (1) of the Patents and
Designs Act, 1907, are, under Order in Council, for the time being
applicable:
'Trade description' means any description, statement, or
other indication, direct or indirect,-
(a) as to the number, quantity, measure, gauge, 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 producing 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,
privilege, or copyright;
and the use of any figuree, 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
make the description false in a material respect; and the
fact that a trade description is a trade mark, or part of a trade
mark, shall not prevent such trade description being a false trade
description within the meaning of this Ordinance:
'Goods' means anything which is the subject of trade,
manufacture, or merchandise:
'Person', 'manufacturer', 'dealer', or 'trader', and
'proprietor', include any body of persons, corporate 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
reasonably calculate to lead persons to believe that the goods are
the manufacture or merchandise of some person other than the person
whose manufacture or merchandise they really are.
(3) The 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 person applied, in like manner as if
such name or initials were 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 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 authorised the use of such
name or initials; and
(c) are either of a fictitious person or of some person not
bona fide carrying on business in connection with such goods.
3.-(1) Every person who-
(a) forges any trade mark; or
(b) falsely applies to goods any trade mark or any mark so nearly
resembling a trade mark as to be calculated to deceive; or
(c) makes any die, block, machine, or other instrument for the
purpose of forging, or of being used for forging, a trade mark; or
(d) applies any false trade description to goods; or
(e) disposes of or has in his possession any die, block, machine,
or other instrument for the purpose of forging a trade mark; or
(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 defraud, be guilty of an
offence.
(2) Every person who sells, or exposes for, or has in his
possession for sale, or any purposes of trade or manufacture, any
goods or things to which any forged trade mark or false trade description
is applied, or to which any trade mark or mark so nearly
resembling a trade mark as to be calculated to deceive is falsely
applied, as the case may be, shall, unless he proves-
(a) that, having taken all reasonable precautions against committing
an offence against this Ordinance, he had, at the time
of the commission of the alleged offence, no reason to suspect the
genuineness of the trade mark, mark, or trade description; and
(b) that, on demand made by or on behalf of the prosecutor, he
gave all the information in his power with respect to the persons
from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently,
be guilty of an offence.
(3) Every person who is guilty of an offence against this Ordinance
shall be liable,-
(a) on conviction before the Supreme Court, to imprisonment
for any term not exceeding 2 years, and to a fine not exceeding
2,000 dollars; and
(b) on summary conviction, to imprisonment for any term not
exceeding 4 months, or to a fine not exceeding 100 dollars, and, in
the case of a second or subsequent conviction, to imprisonment for
any term not exceeding 6 months, or to a fine not exceeding 250
dollars; and,
(c) in any case, to forfeit every chattel, article, instrument, or
thing by means of or in relation to which the offences has been committed.
(4) The Court or Magistrate before which or whom any person
is convicted under this section may order any forfeited articles to
be destroyed or otherwise disposed of as the Court or Magistrate
thinks fit.
(5) A person charged with an offence under this section before a
Magistrate shall, on appearing before such Magistrate and before
the charge is gone into, be informated of his right to be tried
on indictment before the Supreme Court, and, if he requires to be
so tried, be committed for trial and be so tried accordingly.
4. A person shall be deemed to forge a trade mark who either,-
(1) without the assent of the proprietor of the trade mark, make
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 or proving the assent
of the proprietor shall lie on the defendant.
5.-(1) A person shall be deemed to apply a trade mark or mark
or trade description to goods who-
(a) applies it to the goods themselves; or
(b) applies it to any covering, label, reel, or other thing in or
with which the goods are sold or exposed or had in possession for
any purpose of sale, trade, or manufacture; or
(c) places, encloses, or annexes any goods which are sold or exposed
or had in possession for any purpose of sale, trade, or manufacture,
in, with, or to any covering, label, reel, or other thing to
which a trade mark or trade description has been applied; or
(d) uses a trade mark or mark or trade description in any manner
calculated to lead to the belief that the goods in connexion with
whcih 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 'lable' 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 calculated to deceive, but in any prosecution for falsely
applying a trade mark or mark to goods the burden of proving the
assent of the proprietor shall lie on the defendant.
6. Where a defendant is charged with making any die, block,
machinc, or other instrument for the purpose of forging, or being
used for forging, a trade mark, or with falsely applying to goods any
trade mark or any mark so nearly resembling a trade mark as to be
calculated to deceive, or with applying to goods any false trade
description, or causing any of the things mentioned in this section
to be done, and proves-
(1) that, in the ordinary course of his business, he is employed,
on behalf of other 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 alleged
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 has given due
notice to him that he will rely on the above defence.
7.-(1) Where a watch ease has thereon any words or marks
which constitute,,or are by coinmon repute considered as constitut-
ing, a description of the country in which the watch was made, and
the watch bears no descripbon of the cotintry 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 pro-
visions of this Ordinance with respect to goods to which a false trade
description has been applied, and with respect to selling or exposing
for or having in possession for sale or any purpose, of trade or manu-
facture, goods with a false trade description shall apply accordingly.
(2) For the purposes of this section the expression 'watch'
weans all that portion of a watch which is not the watch case.
8. In any information, indictment, pleading proceeding, or docit-
ment, in which any trade mark or forged trade mark is intended to
be mentioned, it shall be sufficient, without further description and
without any copy or facsimile, to state that frade mark or forged
trade mark to be a trade mark or forged trade mark.
9. In any prosecution for an offence against this Ordinance,-
(1) a defendant and his wife or her husband, as the case may be,
may, if the defendant thinks fit, be called as a witness, and, if
called, shall be sworn and examined, and may be 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 ship-
ment shall be prima facie evidence of the place or country in which
the goods were made or produced.
10. Every person who, being within the Colony, procures,
counsels, aids, abets, or is accessory to the commission, without
the Colony, of any act, which, if committed in the Colony, would
under this Ordinance be a misdemeanor, shall be guilty of that
mlsdenieanor as a principal, and be liable to be proceeded against,
tried and convicted in the Colony as if the misdemeanor had been
there committed.
11L-(1) Where, on any information or complaint laid for an
offence against this Ordinance, a Magistrate has issued either a
summons requiring the defendant charged by such information or
complaint to appear to answer to the same, or has issued a warrant
for the arrest of such defendant, and either the said Magistrate or
any other Magistrate, on or after issuing the summons or Warrant,
is satisfied by information upon oath that there is reasonable, cause
to suspect that any goods or things by means of or in relation to
which such offerice has been committed are in any house or premises
of the defendant, or otherwise in his possession or tinder his control
in any place, such Magistrate may issue a warrant, by virtue of
which it shall be lawful for any constable named or referred to in
the warrant to enter such house, premises, or place at any reason
able 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
* As amencled by 'il;o. 1 of 1912,
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 com-
plaint may be laid or made for the purpose only of enforcing such
forfeittire, 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
disposed of in such manner as the Court or Magistrate by which
or whom the same are forfeited may direct; and the Court or
Magistrate may, out of any proceeds which may be realized by the
disposition of such goods or thingfs (all trade Marks and trade
descriptions being first obliterated), award to any innocent party any
loss which lie may have innocently sustained in dealing with such
groods.
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 pro-
secutor respectively.
13. No prosecution for an offence against, this Ordinance shall be
commenced after the expiration of 3 years next after the commission
of the offence, or one year next after the first discovery thereof by
the prosecutor, whichever expiration first happens.
14. Whereas it is expedient to make provision for prohib-
iting the importation of goods which, if sold, wofild be liable to
forfeiture under this Ordinance :-
(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
* As amended by No. 50 of 1911, No. 1 of 1912 and Ne. 2 of 1912.
Kingdom, unless such name or trade mark is accompanied by a
definite indication of the country in which the goods were inade oi
produced are hereby prohibited to be imported into the Colony, and
if any such goods are imported or brought into the Colony contrary
to the prohibition herein contained, such goods shall be forfeited
and may be destroyed or otherwise, disposed of as the Superinten-
dent of Imports and Exports may direct
(2) before detaining any such goods, or taking any further
proceedings with a view to the forreiture thereof under this Ordi-
nance, the Superintendent of Imports and Exports may require the
regulations under this scelion, whether as to information, security,
conditions, or other matters, to be complied with, and may satisly
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 make regulations, either general
or special, respecting the detention and forfeiture of goods the im-
portation of which is prohibited by this section, and the conditions,
if any, to be fulfilled before such detention and forfeiture, and inay
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
Kingdom, that name, unless accompanied by the name of the
country in which such place, is situate, shall be treated for the pur-
poses of this section as if it were the naine of a place in the United
Kingdom ;
(5) the regulations may apply to all goods the importation
of which is prohibited by this section, or different regulations may
be made respecting different classes of such goods or of offences in
relation to such goods;
(6) the regulations may provide for the informant reimbursing
the Superintendent of Imports and Exports all expenses and
damages incurred in respect of any detention made on his informa-
tion, and any proceedings consequent on such detention.
15. On the sale or in the contract for the sale of any goods
to which a trade mark, or mark, or trade description has been
applied, the vendor shall be, deemed to warrant that the mark is a
genuine trade mark and not forged or falsely applied, or that the
trade description is not a false trade description within the meaning
of this Ordinance, unless the contrary is expressed in some writing
signed by or on behalf of the vendor and delivered at the time of
the sale or contract to and accepted by the vendee.
16. Where, at the commencement of this ordinance, a trade des-
cription is lawfully and generally applied to goods of a particular
class, or manufactured by a particular method, to indictate the
particualr class metod of manufacture of such goods, the pro-
visions of this Ordinance with respect to false descriptions shall not
apply to such trade description when so applied: Provided that
where such trade description includes the name of a place or
country, and is calculated to mislead as to the place or country
where the goods to which it is applied were actually made or pro-
duced, and the goods are, not actually made or produced in that
place or country, this section shall not apply unless there is added
to the trade description, immediately before or after the name of
that place or country, in an equally conspicuous manner with that
name, the name of the place or country in which the goods were
actually made or produced, with a statement that they were made
or produced there.
17-(1) This Ordinance shallt 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 inter-
rogatory in any action, but such discovery any answer shall not be
admissible in evidence agalnst such in any prsecution for an
offence against this Ordinance.
(3) Nothing in this Ordinance shall be construed so as to render
liable, to any prosecution or punishment any servant of a master
resident in the Colony who bona fide acts in obedience to the
instructions of such master, and who, on deniand made by or
on behalf of the prosecutor, has given full information as to his
master.
18. Every person who falsely represents that any goods are made
by a person holding a Royal Warrant, or for the service of His
Majesty, or any of the Royal Family, or any Government depart-
ment, colonial or otherwise, shall, on summary conviction, be liable
to a fine not exceeding 100 dollars.
* AS amended by No. 80 of 1911 and No. 51 of 1911.
Short title. Interpretation of terms. [50 & 51 Vict.c. 28 s. 3.] [5 Edw. VII.c. 15.] [7 Edw. VII.c. 29.] Offences as to trade marks and trade descriptions. [50 & 51 Vict.c. 28 s. 2.] Forging trade mark. [50 & 51 Vict.c. 28 s.4.] Applying mark or description. [ib.s.5.] Exemption of certain person 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. [50 & 51 Vict.c. 28 s. 9.] Rules as to evidence. [ib.s.10.] Punishment of accessory. [ib.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. [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 certain cases. [50 & 51 Vict.c. 28 s. 18.] Savings. [ib.s.19.] False representation as to Royal Warrant, etc. [ib.s.20.]
Abstract
Short title. Interpretation of terms. [50 & 51 Vict.c. 28 s. 3.] [5 Edw. VII.c. 15.] [7 Edw. VII.c. 29.] Offences as to trade marks and trade descriptions. [50 & 51 Vict.c. 28 s. 2.] Forging trade mark. [50 & 51 Vict.c. 28 s.4.] Applying mark or description. [ib.s.5.] Exemption of certain person 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. [50 & 51 Vict.c. 28 s. 9.] Rules as to evidence. [ib.s.10.] Punishment of accessory. [ib.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. [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 certain cases. [50 & 51 Vict.c. 28 s. 18.] Savings. [ib.s.19.] False representation as to Royal Warrant, etc. [ib.s.20.]
Identifier
https://oelawhk.lib.hku.hk/items/show/852
Edition
1912
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 January 24, 2025, https://oelawhk.lib.hku.hk/items/show/852.
