CHAPTER XXI.

OFFENCES AND THEIR PENALTIES.

THE only penalties imposed by the Act of 1883 are those prescribed for the offences set forth in the 105th and 106th sections. By the 105th section it is enacted that any person who represents that any article sold by him is a patented article when no patent has been granted for the same . . . shall be liable for every offence on summary conviction to a fine not exceeding 51. And further, that a person shall be deemed for the purposes of the enactment to represent that an article is patented . . . if he sells the article with the word 'patent,' 'patented,' or any word or words expressing or implying that a patent has been obtained for the article stamped, engraved, or impressed on or otherwise applied to the article.

According to the case of Cheavin v. Walker (L. R. 5 Ch. D. 862), the use of the word 'Patent,' along with a representation of the royal arms as a label on an article made according to an invention for which the patent has expired, was considered to be a representation that the patent was still subsisting, and was held to disentitle the plaintiff from obtaining an injunction to restrain the wrongful use of the label. The plea of its being a trade-mark was not allowed to be set up. It is impossible' (said Sir G. Jessel, M. R.) 'to allow a man who has once had the protection of a patent to obtain a further protection by using the name of his patent as a trade-mark. No man can claim a trade-mark in a falsehood. It is a falsehood in representing the patent as still subsisting.' See also the Linoleum Manufacturing Co. v. Nairn (L. R. 7 Ch. D. 834).

By the second section of the Merchandise Marks Act,

1887 (50 & 51 Vict. c. 28), every person who (1 d) applies any false trade description to goods, and (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 . . . false trade description is applied, shall be guilty of an offence against that Act, unless he proves that he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade description, and that on the prosecutor's demand he gave all the information in his power with respect to the persons from whom he obtained such goods or things, or that otherwise he had acted innocently. By the third section (1) of the same Act the expression trade description' means any description, statement, or other indication, direct or indirect, (e) as to any goods being the subject of an existing patent; 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 the above matter, shall be deemed a trade description within the meaning of the Act. The expression false trade description' means a trade description which is false in a material respect as regards the goods to which it is applied. Persons found. guilty of an offence against the said Act are liable to fine and imprisonment and to forfeit any article in relation to which the offence has been committed. (Sect. 2, e.)

In the case of Gridley v. Swinborne (5 Times R. 91), it was held that the sale of packets of gelatine which were marked with the royal arms and bore the words 'Under Royal Letters Patent. Swinborne's Patent Refined Isinglass,' was not an offence under the second section of the Merchandise Marks Act of 1887 when there had been a patent for the manufacture of the article, but which patent had expired many years previously. Since no proceedings were taken under sections 105 and 106 of the Patents Act of 1883, it seems to have been conceded that no offence had been committed under those sections.

To avoid all difficulty in cases of this kind, and to rebut any possible charge of fraud, manufacturers would do well

to add the number and date of the patent to the mark or label.

The fact that a provisional specification has been lodged at the Patent Office does not justify the use of the word 'Patent' as a label upon articles made according to the invention until a patent has been obtained. (The Queen v. Wallis, 3 R. P. C. 1; The Queen v. Crampton, 3 R. P. C. 367.)

By the 106th section of the Act of 1883 it is enacted that 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 that he is carrying on his trade, business, calling, or profession, by or under such authority as aforesaid, shall be liable, on summary conviction, to a fine not exceeding 201..

Many persons engaged in business have been accustomed to make use of the royal arms in one way or another, and if they continue to do so they should be careful not to bring themselves within the purview of this section.

By the first section of the Act of 1888 it is enacted that any person describing himself to be a Patent Agent when he is not on the register is liable on summary conviction to a penalty of 201. (See Chapter XXIV., 'On the Institute of Patent Agents.')

In Scotland any offence under the Act of 1883 declared to be punishable on summary conviction may be prosecuted in the Sheriff's Court. (Sect. 108.) In the Isle of Man any offence under the Act which would in England be punishable on summary conviction may be prosecuted, and any fine in respect thereof recovered at the instance of the person aggrieved, in the manner in which offences punishable on summary conviction may for the time being be prosecuted. (Sect. 112, subsect. 3.)

The ninety-third section of the Act of 1883 enacts that if any person makes or causes to be made a false entry in

any Register kept under the Act, or a writing falsely purporting to be a copy of an entry in any such register, or produces or tenders, or causes to be produced or tendered, in evidence, any such writing, knowing the entry or writing to be false, he shall be guilty of a misdemeanor.

In the Isle of Man the punishment for a misdemeanor under the Act is imprisonment for any term not exceeding two years, with or without hard labour, and with or without a fine not exceeding 100l. at the discretion of the Court. (Sect. 112, subsect. 2.)

CHAPTER XXII.

INTERNATIONAL AND COLONIAL ARRANGEMENTS.

International Arrangements.

It is enacted by the 103rd section of the Patents Act of 1883 that, if the Crown should make any arrangement with the Government or Governments of any foreign state or states for the mutual protection of inventions, then any person who has applied for protection for any invention in any such state shall be entitled to a patent for his invention under the Act in priority to other applicants, and such patent shall have the same date as the date of the application in such foreign state. But the application must be made in this country in the same manner as an ordinary application under the Act, and within seven months from the date of the application for protection in the foreign state. A patentee under this section will not be allowed to recover damages for infringements happening prior to the date of the actual acceptance of his complete specification in this country. By the second subsection of the same section it is enacted that the publication in the United Kingdom or the Isle of Man, during the said period of seven months, of any description of the invention, or the use therein during the said period of the invention, shall not invalidate the patent which may be granted for the invention.

Then by the fourth subsection it is directed that these provisions are only to apply to 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.