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SECT. 2.

shall cease unless the proprietor shows that he took all proper steps to insure the marking of the article."

The mark is prescribed by rule 32 of the Designs Rules made under the Act, and is to consist of an abbreviation of the word

Registered,” with the number appearing on the certificate of registration.

66

Forging a trade mark or falsely applying any trade mark with intent todefraud, a mis demeanor.

or

2. Every person who, with intent to defraud, or to enable another to defraud, any person, shall forge or counterfeit, or cause or procure to be forged or counterfeited, any trade mark, or shall apply, or cause procure to be applied, any trade mark or any forged or counterfeited trade mark to any chattel or article not being the manufacture, workmanship, production, or merchandise of any person denoted or intended to be denoted by such trade mark, or denoted or intended to be denoted by such forged or counterfeited trade mark, or not being the manufacture, workmanship, production, or merchandise of any person whose trade mark shall be so forged or counterfeited, or shall apply, or cause or procure to be applied, any trade mark or any forged or counterfeited trade mark to any chattel or article, not being the particular or peculiar description of manufacture, workmanship, production, or merchandise denoted or intended to be denoted by such trade mark or by such forged or counterfeited trade mark, shall be guilty of a misdemeanor, and every person so committing a misdemeanor shall also forfeit to her Majesty every chattel and article belonging to such person to which he shall have so unlawfully applied, or caused or procured to be applied, any such trade mark or forged or counterfeited trade mark as aforesaid, and Sect. 2. every instrument in the possession or power of such person, and by means of which any such trade mark or forged or counterfeited trade mark as aforesaid shall have been so applied, and every instrument in the possession or power of such person for applying any such trade mark or forged or counterfeit trade mark as aforesaid, shall be forfeited to her Majesty; and the court before which any such misdemeanor shall be tried may order such forfeited articles as aforesaid to be destroyed or otherwise disposed of as such court shall think fit.

As to what is a trade mark within the meaning of the Act, see sect. 1. It is to be noticed that intent to defraud, or to enable another to defraud, must be shown in order to secure the benefit of the Act; but see sect. 12. As to the protection in equity of trade marks in the absence of evidence of such intent, see sect. 1, and sects. 21 and 22. As to the meaning of “person ” see also sect. 1.

Forgery.—Prior to this Act the imitation of a trade mark was not forgery. At common law “forgery supposes the possibility of a genuine document, and that the false document is not as good as the genuine document, and that the one is not as efficacious for all purposes as the other. In the present case one of these documents is as good as the other; the one asserts what the other does ; the one is as true as the other ; but the one is improperly used :” per Bramwell, B., in R. v. Smith, C. C. R. 1858, D. & B. 566; 8 Cox 32 ; 27 L. J. M. C. 225 ; 4 Jur. N. S. 1003 ; 31 L. T. 135 ; 6 W. R. 495. “The issuing of this wrapper without the stuff within it would be no offence. In the printing of these wrappers there is no forgery; the real offence is in issuing them with fraudulent matter in them :" per Pollock, C.B., ibid. See also R. v. Closs, C. C. R. 1857, D. & B. 460 ; 7 Cox 494 ; 27 L. J. M. C. 54 ; 3 Jur. N, S. 309.

Consequently the indictment in such cases should formerly

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SECT. 3.

have been for obtaining money under false pretences, and not for forgery.

The punishment for a misdemeanor under this Act is imprisonment for not more than two years, with or without hard labour or a fine : sect. 14.

A conviction does not affect any right or civil remedy of the person aggrieved : sects. 11, 21, and 22.

As to limitation of actions, see sect. 18.

There is nothing illegal or improper in a compromise of criminal proceedings taken under this Act, for it is not against the policy of the law to allow of a compromise in cases where an offender may be proceeded against either civilly or criminally at the option of the person injured: Fisher v. Apollinaris Company, C. A. 1875, L. R. 10 Ch. 297 ; 44 L. J. Ch. 500; 32 L. T. N. S. 628; 23 W. R. 460.

As to what amount of imitation constitutes forgery within the meaning of the Act, see sect. 5.

There is a prohibition against the importation of articles of foreign manufacture which bear the name and address, or the name and trade mark, of a manufacturer of such articles in the United Kingdom, contained in the Revenue Act, 1883: see notes to sect. 7.

with which

gold, a mis

Applying a 3. Every person who, with intent to defraud, or to forged trade mark to any enable another to defraud, any person, shall apply or vessel, case, wrapper, cause or procure to be applied any trade mark or any &c., in or any article forged or counterfeited trade mark to any cask, bottle, tended to be stopper, vessel, case, cover, wrapper, band, reel, ticket, demeanor. label, or other thing in, on, or with which any chattel

or article shall be intended to be sold or shall be sold or uttered or exposed for sale, or intended for any purpose of trade or manufacture, or shall enclos place any chattel or article, or cause or procure any chattel or article to be enclosed or placed, in, upon, under, or with any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing Sect. 3. to which any trade mark shall have been falsely applied, or to which any forged or counterfeited trade mark shall have been applied, or shall apply or attach or cause or procure to be applied or attached to any chattel or article any case, cover, reel, ticket, label, or other thing to which any trade mark shall have been falsely applied, or to which any forged or counterfeited trade mark shall have been applied, or shall enclose, place, or attach any chattel or article, or cause or procure any chattel or article to be enclosed, placed, or attached, in, upon, under, with, or to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing having thereon any trade mark of any other person, shall be guilty of a misdemeanor, and every person so committing a misdemeanor shall also forfeit to her Majesty every such chattel and article, and also every such cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing as aforesaid in the possession or power of such person ; and every other similar cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing made to be used in like manner as aforesaid, and every instrument in the possession or power of such person, and by means of which any such trade mark or forged or counterfeited trade mark as aforesaid shall have been applied, and also every instrument in the possession or power of such person for applying any such trade mark or forged or counterfeit trade mark as aforesaid, shall be forfeited to

SECT. 4. her Majesty; and the court before which any such

misdemeanor shall be tried may order such forfeited articles as aforesaid to be destroyed or otherwise disposed of as such court shall think fit.

As to the punishment of a misdemeanor, see sect. 14.
As to limitation of actions, see sect. 18.

A conviction under the Act does not affect any right or civil remedy of any person aggrieved : see sects. 11, 21, and 22.

Where an offence is of such a nature, as is the case in regard to offences under this Act, that the offender may be proceeded against either civilly or criminally, there is nothing improper or illegal in a compromise of the criminal proceedings taken against him : Fisher & Co. v. Apollinaris Company, C. A. 1875, L. R. 10 Ch. 297 ; 44 L. J. Ch. 500 ; 32 L. T. N. S. 628 ; 23 W. R. 460.

As to the meaning of “person” and “trade mark," see sect. I.

It is not necessary to allege in the indictment or to prove intent to defraud any particular person : see sect. 12.

As to what amount of imitation will constitute forgery, see

sect. 5.

As to the importation of articles of foreign maker bearing the trade mark of a manufacturer of such articles in England, see notes to sect. 7, and the Revenue Act, 1883, sect. 2.

Selling articles with forged or false trade

31st Decem

4. Every person who, after the thirty-first day of

December one thousand eight hundred and sixty-three, marks after shall sell, utter, or expose either for sale or for any ber 1863, penalty

purpose of trade or manufacture, or cause or procure to be sold, uttered, or exposed for sale or other purpose

as aforesaid, any chattel or article, together with any ing 6s, nor forged or counterfeited trade mark, which he shall know

to be forged or counterfeited, or together with the trade mark of any other person applied or used falsely or wrongfully or without lawful authority or excuse, know

equal to value of article sold and a sum not exceed£5

.

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