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SECT. 103. 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 SECT. 103. 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.
Prior to the Registration Acts, an alien could acquire such a right to the exclusive right of a trade mark as would entitle him to bring an action in England to prevent its infringement. "I apprehend that every subject of every country, not being an alien enemy-and even to an alien enemy the court has extended relief in cases of fraud-has a right to apply to this court, to have a fraudulent injury to his property arrested. And here the plaintiffs have the right-a right recognised, I imagine, everywhere in the world, or at least in every civilised community-of saying, We, being the manufacturers of certain goods, claim that another man shall not manufacture goods, and put upon them our trade mark, and then pass them off as manufactured by us :" per Wood, V.-C., 1857, Collins Co. v. Cowen, 3 K. & J. 428; 3 Jur. N. S. 929; 29 L. T. 245; 30 L. T. 62; W. R. 676. See also Collins Co. v. Reeves, Stuart, V.-C., 1858, 28 L. J. Ch. 56; 4 Jur. N. S. 865; 33 L. T. 101; 6 W. R. 717; and see notes to the Merchandise Marks Act, 1862, sect. I.
By Rule 5 of the Rules under the Act of 1875, it was provided that an alien could apply for the registration of a trade mark under that Act; but it appears that in order to succeed in his application it was essential that he should have used the trade mark in Great Britain, otherwise he could have acquired no property in it by common repute; mere user abroad would not suffice: In re Leonard and Ellis' Trade Mark, C. A. 1884, 26 Ch. D. 288; 53 L. J. Ch. 603; 51 L. T. N. S. 35; In re Riviere's Trade Mark, C. A. 1884, 26 Ch. D. 48; 53 L. J. Ch. 578; 50 L. T. N. S. 763 ;
SECT. 104. 32 W. R. 390; In re Munch's Application, Chitty, J., 1883, 50 L. T. N. S. 12; W. N., p. 170.
Provision for colonies
If the trade mark be in use in Great Britain, an alien owner may doubtlessly apply for its registration under this Act also in the ordinary way, being "a person claiming to be the proprietor" within the meaning of sect. 62; see also Mouson v. Boehm, Chitty, J., 1884, 26 Ch. D. 398; 53 L. J. Ch. 932; 50 L. T. N. S. 784; 32 W. R. 612.
If, however, there has been no user in this country, then an alien owner of a trade mark can only apply for registration under this Act, provided he has already applied for protection in a foreign state to which the above section 103 has, by Order in Council, been declared applicable. Then, it would appear from sub.-sect. 3, he is entitled to registration without going through the formality of the usual mode of application; but how otherwise he is to obtain registration does not appear.
Again, if protection has been applied for in a foreign state, with which an arrangement has been made for mutual protection, any person who has so applied is ipso facto entitled to registration under this Act, in priority to other applicants; and the registration is to date back to the time when protection was obtained in the foreign state. This provision, if taken literally, is calculated to work great injustice.
The whole section is so vague and confused that it is impossible to suggest what will be the construction ultimately placed upon it.
The section has been declared by Order in Council to be applicable to Belgium, Brazil, France, Guatemala, Italy, Netherlands, Portugal, Salvador, Servia, Spain, Switzerland, Ecuador, and Tunis, with which countries an arrangement for mutual protection has been made.
104. (1.) Where it is made to appear to her and India. Majesty that the Legislature of any British possession 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 SECT. 105. 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.
"British possession " means any territory or place situate within her Majesty's dominions not being or forming part of the United Kingdom, or of the Channel Islands, or of the Isle of Man see sect. 117.
articles to be
105. (1.) Any person who represents that any Penalty on article sold by him is a patented article, when no presenting patent has been granted for the same, or describes any patented. design or trade mark applied to any article sold by him as registered which is not so, shall be liable for every offence on summary conviction to a fine not exceeding five pounds.
(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
SECT. 106. article stamped, engraved, or impressed on, or otherwise applied to, the article.
Penalty on unauthorised
assumption of royal
This section follows sect. 7 of the Patents Act of 1835 (5 & 6 Will. IV., c. 83), as to patents; see sect. 11 of the Act of 1843 (6 & 7 Vict., c. 65) as to designs.
Sect. 7 of the Merchandise Marks Act, 1862 (25 & 26 Vict., c. 88), imposes a penalty of not more than £5 nor less than 1OS. upon any one who shall untruly represent goods to be the subject of an existing patent, privilege, or copyright. A person himself wrongfully making use of the word "patent" in his trade mark, cannot take advantage of the Act, but if an article has been sold during the existence of a patent as a "patent" article, it may properly be sold as such even after the expiry of the patent: Morgan v. M'Adam, Wood, V.-C., 1866, 36 L. J. Ch. 228; 15 L. T. N. S. 348. And the same rule will possibly hold under this Act, for it is to be noticed that the words used are "when no patent has been granted for the same," which obviously do not cover the case of an expired patent. Care must, however, be taken, if the patent has expired, not to represent that it is subsisting; Cheavin v. Walker, C. A. 1877, 5 Ch. D. 850; 46 L. J. Ch. 686; 36 L. T. N. S. 938; see also Edelsten v. Vick, Wood, V.-C., 1853, 11 Hare 78; 18 Jur. 7; Marshall v. Ross, James, V.-C., 1869, L. R. 8 Eq. 651; 39 L. J. Ch. 225; 21 L. T. N. S. 260; 17 W. R. 1086. See notes to sect. 73, and to Merchandise Marks Act, 1862, sect. 7.
As to summary conviction in Scotland, see sect. 108; in the Isle of Man, see sect. 112; and in Ireland, see sect. 117.
106. Any person who, without the authority of her Majesty, or any of the royal family, or of any government department, assumes or uses in connection 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 believe