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2.-(1.) Every person whom
(6.) 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 Act, and unless he proves that he acted without intent to defraud, be guilty of an offence against this Act.
(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, unless he proves
(a.) That, having taken all reasonable precautions against committing an offence against this Act, 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
(6.) 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 Act.
(3.) Every person guilty of an offence against this Act shall be liable
(i.) On conviction on indictment, to imprisonment, with or without hard labour, for a term not exceeding two years, or to fine, or to both imprisonment and fine; and
(ii.) On summary conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding 201., and in the case of a second or subsequent conviction to imprisonment, with or without hard labour, for a term not exceeding six months, or to a fine not exceeding 501.; and
(iii.) 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 before whom any person is convicted under this section may order
forfeited articles to be destroyed or otherwise disposed of as thu Court thinks fit.
(5.) Any offence for which a person is under this Act liable to punishment on summary conviction may be prosecuted, and any articles liable to be forfeited under this Act by a Magistrate's Court of summary jurisdiction may be forfeited, in manner provided by the Magistrates Summary Jurisdiction Acts: Provided that a person charged with an offence under this section before a Magistrate's Court of summary jurisdiction shall, on appearing before the Court, and before the charge is gone into, be informed of his right to be tried on indictment, and if he requires be so tried accordingly.
3.-(1.) For the purposes of this Act
The expression “trade-nark” means a trade-mark registered in the register of trade-marks kept under “The Trade-marks Act, 1887,"* and includes any trade-mark which, either with or without registration, is protected by an Order in Council under the said Act.
The expression “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
(6.) 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;
(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 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 Act.
The expression “ false trade description" means a trade description which is false in a material respect as regards goods to which it is applied, and includes every alteration of a trade description, whether by was 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 trademark, shall not prevent such trade description being a false trade description within the meaning of this Act.
The expression “goods” means anything which is the subject of trade, manufacture, or merchandize.
The expressions" person,” “ manufacturer,” dealer," or " trader,” and “ proprietor,” include any body of persons corporate or unincorporate.
The expression "name" includes any abbreviation of a name.
* Page 101. (1892-93. LXXXV. 1
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 calculated to lead persons to believe that the goods are the manufacture or merchandize of some person other than the person whose manufacture or merchandize they really are.
(3.) The provisions of this Act 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 purpose of this enactment the expression “ false name or initials” means, as applied to any goods, any name or initials of a person which
(a.) A re not a trade-mark or part of a trade-mark; and
(6.) Are identical with, or a colourable imitation of, the name or initials of a person carrying on business in connection with goods of the same description, and not having authorized the use of such name or initials ; and
(c.) Are either those of a fictitious person, or of some person not bona fide carrying on business in connection with such goods.
4. A person shall be deemed to forge a trade-mark who either
(a.) Without the assent of the proprietor of the trade-inark makes that trade-mark, or a mark so nearly resembling that trademark as to be calculated to deceive; or
(6.) 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 Act referred to as a forged trade-mark.
Provided that in any prosecution for forging a trade-mark the burden of proving the assent of the proprietor shall lie on the defendant.
5.-(1.) A person shall be deemed to apply a trade-mark, or mark, or trade description to goods who
(a.) Applies it to the goods themselves; or
(6.) 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, incloses, or annexes any goods which are sold, or exposed, or bad 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 connection
with which it is used are designated or described by that trademark, or mark, or trade description.
(2.) The expression “covering” includes any stopper, cask, bottle, vessel, box, cover, capsule, case, frame, or wrapper; and the espression "label" includes any band or ticket.
A trade-niark, 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.
(3.) A person shall be deemed to falsely apply to goods a trademark or mark who, without the assent of the proprietor of a trademark, applies such trade-mark, or a mark so nearly resembling it 15 to be calculated to deceive; but in any prosecution for falsely applying a trade-mark or mark to goods the burden of proving the assent of the proprietor shall lie on the defendant.
6. Where a defendant is charged with making any die, block, machine, or other instrument for the purpose of forging, or being used for forging, a trade-mark, or with falsely applying to goods ans 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 in this section mentioned to be done, and proves-
(a.) 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 such goods; and
(6.) That he took reasonable precautions against committing the offence charged ; and
(c.) 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
(d.) 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 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 bim that he will rely on the above defence.
7. Where a watch-case has thereon any words or marks which constitute, or are by common repute considered as constituting, a description of the country in which the watch was made, and the watch bears no description of the country where it was made, those
words or marks shall primû facie be deemed to be a description of that country within the meaning of this Act, and the provisions of this Act with respect to goods to which a false trade description has been applied, and with respect to selling, or exposing for or having in possession for sale, or any purpose of trade or manufacture, goods with a false trade description, shall apply accordingly, , and for the purposes of this section the expression “ watch all that portion of a watch which is not the watch-case.
8. In any indictment, pleading, proceeding, or document in which any trade-mark or forged trade-mark is intended to be mentioned, it shall be sulficient, without further description and without any copy or facsimile, to state that trade-mark or forged trade-mark to be a trade-mark or forged trade-mark.
9. In any prosecution for an offence against this Act
(1.) A defendant, and his wife or her husband, as the case may be, may, if the defendant thinks nt, be called as a witness, and, if called, shall be sworn and examined, and may be cross-examined and re-exumined in like inanner as any other witness.
(2.) In the case of imported goods, evidence of the port of shipment shall be primâ facie evidence of the place or country in which the goods were made or produced.
10. Any 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 Act be a misdemeanour, shall be guilty of that misdemeanour as a principal, and be liable to be indicted, proceeded against, tried, and convicted in any district or place in the Colony in which he may be, as if the misdemeanour had been there committed.
11.-(1.) Where, upon information of an offence against this Act, a District Magistrate has issued either a summons requiring the defendant charged by such information to appear to answer to the same, or a warrant for the arrest of such defendant, and either the said District Magistrate on or after issuing the summons or warrant, or any other District Magistrate, is s tisfied, by information on oath, that there is reasonable cause to suspect that any goods or things, by means of or in relation to which such offence has been committed, are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such District Magistrate may issue a warrant under his hand, by virtue of which it shall be lawful for any constable named or referred to in the warrant, to enter such house, premises, or place, at any reasonable time by day, and to search there for, and seize and take away, those goods or things; and any goods or things seized under any such warrant shall be brought before a Magistrate's Court of summary jurisdiction for the purpose of its being