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(3.) General rules may be made under this section Sects. at any time after the passing of this Act, but not so 101, 102. as to take effect before the commencement of this
Act, and shall (subject as hereinafter mentioned) be of the same effect as if they were contained in this Act, and shall be judicially noticed.
(4.) Any rules made in pursuance of this section shall be laid before both Houses of Parliament, if Parliament be in session at the time of making thereof, or if not, then as soon as practicable after the beginning of the then next session of Parliament, and they shall also be advertised twice in the official journal to be issued by the comptroller.
(5.) If either House of Parliament, within the next forty days after any rules have been so laid before such House, resolve that such rules or any of them ought to be annulled, the same shall after the date of such resolution be of no effect, without prejudice to the validity of anything done in the meantime under such rules or rule, or to the making of any new rules or rule.
Rules have been issued under this section in regard to patents, designs, and trade marks, and some of the forms contained in the schedule to the Act have been altered.
102. The comptroller shall, before the first day Annual of June in every year, cause a report respecting reports of the execution by or under him of this Act to be laid troller. before both Houses of Parliament, and therein shall include for the year to which each report relates all general rules made in that year under or for the purposes of this Act, and an account of all fees, salaries, and allowances, and other money received and paid under this Act.
ments for of inventions, de
103. If Her Majesty is pleased to make any arrangement with the government or governments of any foreign state or states for mutual protection of inventions, designs, and trade marks, or any of them, then any person who has applied for protection for any invention, design, or trade mark in any such state, shall be entitled to a patent for his invention or to registration of his design or trade mark (as the case may be) under this Act, in priority to other applicants; and such patent or registration shall have the same date as the date of the protection obtained in such foreign state.
Provided that his application is made, in the case of a patent within seven months, and in the case of a design or trade mark within four months, from his applying for protection in the foreign state with which the arrangement is in force.
Provided that nothing in this section contained shall entitle the patentee or proprietor of the design or trade mark to recover damages for infringements happening prior to the date of the actual acceptance of his complete specification, or the actual registration of his design or trade mark in this country, as the case may be.
(2.) The publication in the United Kingdom or the Isle of Man during the respective periods aforesaid of any description of the invention, or the use therein during such periods of the invention, or the exhibition or use therein during such periods of the design, or the publication therein during such periods of a description or representation of the design, or the use therein during such periods of the trade mark, shall not invalidate the patent which may be granted for the invention, or the registration of the design or trade mark :
(3.) The application for the grant of a patent, or
the registration of a design, or the registration of a trade mark under this section, must be made in the same manner as an ordinary application under this Act: Provided that, in the case of trade marks, any trade mark the registration of which has been duly applied for in the country of origin may be registered under this Act.
(4.) The provisions of this section shall apply only in the case of those foreign states with respect to which Her Majesty shall from time to time by Order in Council declare them to be applicable, and so long only in the case of each state as the Order in Council shall continue in force with respect to that state.
104. (1.) Where it is made to appear to Her Provision Majesty that the legislature of any British posses- and India. sion has made satisfactory provision for the protection of inventions, designs, and trade marks, patented or registered in this country, it shall be lawful for Her Majesty from time to time, by Order in Council, to apply the provisions of the last preceding section, with such variations or additions, if any, as to Her Majesty in Council may seem fit, to such British possession.
(2.) An Order in Council under this Act shall, from a date to be mentioned for the purpose in the Order, take effect as if its provisions had been contained in this Act; but it shall be lawful for Her Majesty in Council to revoke any Order in Council made under this Act.
105. (1.) Any person who represents that any Penalty on falsely article sold by him is a patented article, when no representpatent has been granted for the same, or describes ing articles any design or trade mark applied to any article sold, patented. by him as registered which is not so, shall be liable
Sects. for every offence on summary 105, 106. exceeding five pounds.
conviction to a fine not
(2.) A person shall be deemed, for the purposes of this enactment, to represent that an article is patented, or a design or a trade mark is registered, if he sells the article with the word "patent," patented," "registered," or any word or words expressing or implying that a patent or registration has been obtained for the article stamped, engraved, or impressed on, or otherwise applied to the article.
The question has been raised whether this section. applies where there has been a patent, or registered design, or trade mark, and the patent or registration has expired.
The wording of the section is in favour of an affirmative answer. A somewhat similar point was discussed in Cheavin v. Walker, 5 Ch. D. 850, viz., whether the use of the word "patent" in an alleged trade mark after the patent had expired was a misrepresentation, and the Court of Appeal held that the words "By Her Majesty's Royal Letters Patent," amounted, along with the Royal arms, to a representation that the patent was an existing one. A similar view was taken by Wood, V.-C., in Morgan v. McAdam, 36 L. J. Ch. 228, who said: "Of course it would be better, and those who are inclined to act with scrupulous honesty would take care to put the date of their patent, which would obviate all difficulty, upon the articles which they designate as patented." As to where the marks are put on during the existence of a patent and when the representation is true, see The Leather Cloth Company's Case, 11 H. L. C. 523.
As to proceedings by summary conviction in Scotland, see sect. 108; and in Ireland, sect. 117.
106. Any person who, without the authority of Her Majesty, or any of the Royal Family, or of any assumption Government Department, assumes or uses in conof Royal nexion with any trade, business, calling, or profession, the Royal arms, or arms so nearly resembling the same as to be calculated to deceive, in such a
manner as to be calculated to lead other persons to Sects. believe that he is carrying on his trade, business, 106calling, or profession, by or under such authority as aforesaid, shall be liable on summary conviction to a fine not exceeding twenty pounds.
The mere use of the Royal arms is not an offence under this section. In order to amount to an offence, the use must be calculated to lead persons to believe that the person using them is carrying on his business under the authority of Her Majesty, or the Royal Family, or some Government department.
As to summary convictions in Scotland, see sect. 108; and in Ireland, sect. 117.
107. In any action for infringement of a patent in Saving for Scotland the provisions of this Act, with respect to calling in the aid of an assessor, shall apply, and the action shall be tried without a jury, unless the Court shall otherwise direct, but otherwise nothing in this Act shall affect the jurisdiction and forms of process of Courts in Scotland in such an action, or in any action or proceeding respecting a patent hitherto competent to those Courts.
For the purposes of this section "Court of Appeal" shall mean any Court to which such action is appealed.
In Scotland an action for infringement usually takes the form of an action of suspension and interdict, or of an action for damages. See Mackay's Court of Session Practice, I. p. 372, II. p. 210; and Bell's Commentaries, I. p. 120.
108. In Scotland any offence under this Act de- Summary clared to be punishable on summary conviction mayings in be prosecuted in the Sheriff Court.
As to the offences under this Act punishable by summary conviction, see sects. 105, 106.