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As to geographical names which are merely fancy designations Sect. 9. and do not indicate a source of supply, see notes to sect. 64 (3) of the Act of 1883.
As to the importation of goods of foreign manufacture bearing the name and address, or name and trade mark, of a manufacturer of such goods in the United Kingdom, see notes to sect. 7, ante.
it shall not
particular classes of
9. Provided always, that the provisions of this Act Proviso that shall not be construed so as to make it any offence for be an offence any person to apply to any chattel or article, or to any mones cask, bottle, stopper, vessel, case, cover, wrapper, band, used for in reel, ticket, label, or other thing with which such chattel dicating or article shall be sold or intended to be sold, any name, manufacword, or expression generally used for indicating such chattel or article to be of some particular class or description of manufacture only, or so as to make it any offence for any person to sell, utter, or offer or expose for sale any chattel or article to which, or to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing sold therewith, any such generally used name, word, or expression as aforesaid shall have been applied.
This section qualifies the two preceding sections. As to names, words, and expressions, which have ceased to be distinctive (i.e. “distinguishing the manufacture of one person from the manufacture of all others :” per Fry, L.J., in In re Leonard and Ellis' Trade Mark, C. A. 1884, 26 Ch. D. 288 ;. 53 L. J. Ch. 603 ; 51 I. T. N. S. 35), and merely indicate that the article to which they are applied is of some particular class or description of manufacture, see notes to sect. 64 (3) of the Act of 1883.
By sect. 73 of the Act of 1883, the registration is absolutely prohibited of any words as part of, or in combination with a trade
Sects. 10, mark, the exclusive use of which would, by reason of their being
calculated to deceive, be disentitled to protection in a court of justice.
As to the use of the word “patent” as part of the description in a label or trade mark of goods which are not protected by a patent, but which from the usage of many years have acquired the designation, in the trade generally, of patent, see 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, and notes to sect. 7, ante.
Description of trade
10. In every indictment, pleading, proceeding, and marks and document whatsoever in which any trade mark shall be marks in in- intended to be mentioned, it shall be sufficient to
mention or state the same to be a trade mark, without further or otherwise describing such trade mark, or setting forth any copy or facsimile thereof; and in every indictment, pleading, proceeding, and document whatsoever in which it shall be intended to mention any forged or counterfeit trade mark it shall be sufficient to mention or state the same to be a forged or counterfeit trade mark without further or otherwise describing such forged or counterfeit trade mark, or setting forth any copy or facsimile thereof.
As to what is a trade mark within the scope of the Act, see
and as to what degree of imitation constitutes forgery, see
It is unnecessary also to allege an intent to defraud any particular person : sect. 12.
Conviction not to affect
11. The provisions in this Act contained of or any right concerning any act or any proceeding, judgment, or remedy. conviction for any act hereby declared to be a misde
meanor or offence, shall not, nor shall any of them, SECT. II. take away, diminish, or prejudicially affect any suit, process, proceeding, right, or remedy which any person aggrieved by such act may be entitled to at law, in equity, or otherwise, and shall not nor shall any of them exempt or excuse any person from answering or making discovery upon examination as a witness or upon interrogatories or otherwise in any suit or other civil proceeding: provided always, that no evidence, statement, or discovery which any person shall be compelled to give or make shall be admissible in evidence against such person in support of any indictment for a misdemeanor at common law or otherwise, or of any proceeding under the provisions of this Act.
By sect. 77 of the Act of 1883, it is enacted that a person shall not be entitled to institute any proceeding to prevent or to recover damages for the infringement of a trade mark, unless, in the case of a trade mark capable of being registered under that Act, it has been registered in pursuance thereof, or in the case of any other trade mark in use before the 13th August 1875, registration thereof has been refused.
As to what marks are registrable, see sect. 64 of the Act of 1883.
It will be noticed that registration or refusal to register is made a condition precedent to the institution of civil proceedings in the case of all trade marks, with the sole exception of such marks brought into use since 1875 as are not within the definition contained in sect. 64.
As to the wide interpretation placed on the word “person," see sect. I, ante.
And as to the meaning of “aggrieved,” compare Act of 1883, sect. 90 ; and In re Riviere's Trade Mark, C. A. 1884, 26 Ch. D. 48 ; 53 L. J. Ch. 578; 32 W. R. 390.
As to civil remedies for the infringement of trade marks, see sects. 21 and 22.
Intent to defraud, &c.,
alleged in an
12. In every indictment, information, conviction, any particu- pleading, and proceeding against any person for any need not be misdemeanor or other offence against the provisions of indictment, this Act in which it shall be necessary to allege or proved.
mention an intent to defraud, or to enable another to defraud, it shall be sufficient to allege or mention that the person accused of having done any Act which is hereby made a misdemeanor or other offence did such Act with intent to defraud, or with intent to enable some other person to defraud, without alleging or mentioning an intent to defraud any particular person; and on the trial of any such indictment or information for any such misdemeanor, and on the hearing of any information or charge of or for any such other offence as aforesaid, and on the trial of any action against any person to recover a penalty for any such other offence as aforesaid, it shall not be necessary to prove an intent to defraud any particular person, or an intent to enable any particular person to defraud any particular person, but
, it shall be sufficient to prove with respect to every such misdemeanor and offence that the person accused did the act charged with intent to defraud, or with intent to enable some other person to defraud, or with the intent that any other person might be enabled to defraud.
It is also not necessary to describe the trade mark in the indictment or to set out a copy of it : sect. 10.
As to the protection of trade marks in the absence of fraudulent SECTS. 13, intention, see notes to sect. I, and sect. 21.
who aid in
13. Every person who shall aid, abet, counsel, or pro- Persons cure the commission of any offence which is by this the commisAct made a misdemeanor, shall also be guilty of a mis- misde demeanor.
sion of a
meanor to be also
As to meaning of “person ” here, see sect. 1.
The offences made misdemeanors by the Act are described in sects, 2 and 3.
As to the punishment of a misdemeanor, see the next section below,
The word “misdemeanor” includes crime and offence in Scotland : sect. I.
There is nothing illegal or improper in the compromise of proceedings under this Act, for it is not against the policy of the land to allow of a compromise in cases where a person 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 ; 22 L. T. N. S. 628 ; 23 W. R. 460.
Compare with this section the Summary Jurisdiction Act, 1848, (11 & 12 Vict., C. 43), sect. 5, and see sect. 16, post.
14. Every person who shall be convicted or found Punishment guilty of any offence which is by this Act made a mis- meanor undemeanor shall be liable, at the discretion of the court and as the court shall award, to suffer such punishment by imprisonment for not more than two years, with or without hard labour, or by fine, or both by imprisonment with or without hard labour and fine, and also by imprisonment until the fine (if any) shall have been paid and satisfied.