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THE

MERCHANDISE MARKS ACT, 1862.

(25 and 26 Vict., cap. 88.—7th August, 1862.)

AN ACT TO AMEND THE LAW RELATING TO THE FRAUdulent MARKING OF MERCHANDISE.

Whereas it is expedient to amend the laws relating to the fraudulent marking of merchandise, and to the sale of merchandise falsely marked for the purpose of fraud: be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

Forging a trade mark, or falsely applying any trade mark with intent to defraud, a misdemeanour.-Every person who, with intent to defraud, or to enable another to defraud, shall forge or counterfeit, or cause to be forged or counterfeited, any trade mark, or shall apply, or cause to be applied, any trade mark or any counterfeited trade mark to any article not being the manufacture or merchandise of any person denoted by such trade mark, forged, or not being the manufacture of any person whose trade mark shall be so counterfeited, or shall apply, or procure to be applied, any trade mark to any article, not being the particular description of manufacture denoted by such trade mark, shall be guilty of a misdemeanour, and every person committing it shall also forfeit to her Majesty every article belonging to such person to which he shall have so unlawfully applied any such trade mark, and every instrument in the possession of such person, and by means of which any such trade mark or counterfeited trade mark, shall have been so applied, and every instrument in the possession of such person for applying any such trade mark shall be forfeited; and the court before which any such misdemeanour shall be tried may order such forfeited articles to be destroyed or otherwise disposed of.-S. 2.*

Applying a forged trade mark to any vessel, case, wrapper, &c, in or with which any article is sold, or intended to be sold, a misdemeanour.— Every person who, with intent to defraud any person, shall apply or cause to be applied any trade mark or any forged trade mark to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing in, on, or with which any 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 enclose any article to be enclosed in, upon, under, or with any cask, &c., or other thing to which any trade mark shall have been falsely applied, or to which any forged trade mark shall have been applied, or shall apply or procure to be applied to any 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

* Section 1 relates merely to the construction of words used in this Act.

trade mark shall have been applied, or shall enclose any article in any cask, &c., having thereou any trade mark of any other person, shall be guilty of a misdemeanour, and every person committing it shall also forfeit to her Majesty every such article, and also every such cask or other thing in the possession of such person; and every other similar cask or other thing made to be used in like manner, and every instrument in the possession of such person, and by means of which any such trade mark or forged trade mark shall have been applied, and also every instrument in the possession of such person for applying any such trade mark or forged trade mark, shall be forfeited to her Majesty; and the court before which any such misdemeanor shall be tried may order such forfeited articles to be destroyed or otherwise disposed of.-S. 3.

Selling articles with forged or false trade marks after 31st December, 1863, penalty equal to value of article sold, and a sum not exceeding £5, nor less than 10s.-Every person who, after the 31st December, 1863, shall sell, or expose for sale, or for any purpose of trade or manufacture, any article, together with any forged trade mark, which he shall know to be forged, or together with the trade mark of any other person applied falsely or without lawful authority or excuse, knowing such trade mark of another person to have been so applied as aforesaid, and that whether any such trade mark or forged trade mark together with which any such article shall be sold, or exposed for sale, shall be in, upon, about, or with such article, or in, upon, about, or with any cask, &c., or other thing in which such article shall be sold or exposed for sale or other purpose, shall for every such offence forfeit a sum of money equal to the value of the article, and a further sum not exceeding £5 and not less than 10s.-S. 4.

Additions to and alterations of trade marks made with intent to defraud, to be deemed forgeries.-Every addition to, and every alteration of, and also every imitation of any trade mark which shall be made with intent to defraud, or which shall cause a trade mark with such alteration or addition, or shall cause such imitation of a trade mark to resemble any genuine trade mark in such manner as to be calculated to deceive, shall be deemed to be a forged and counterfeited trade mark within the meaning of this Act; and every act of making, or otherwise using any such addition to or alteration of a trade mark or any such imitation with intent to defraud, or to enable any other person to defraud, shall be deemed to be forging a trade mark within the meaning of this Act.-S. 5.

Any person who, after 31st December, 1863, shall have sold an article having a false trade mark, to be bound to give information where he procured it. Where any person who, at any time after the 31st December, 1863, shall have sold or exposed for sale, or shall have caused to be sold or exposed for sale, any article, together with any forged trade mark, or together with the trade mark of any other person used without lawful authority, and that whether any such trade mark, or such forged trade mark as aforesaid, be in, upon, about, or with such article, or in, upon, about, or with any cask, bottle, case, wrapper, label, or other thing in which such article shall have been sold or exposed for sale, such person shall be bound, upon demand in writing, delivered to him by any person whose trade mark shall have been so forged, to give to the person requir ing the same, or his attorney or agent, within 48 hours after such demand, full information in writing of the name and address of the person from

whom he shall have purchased or obtained such article, and of the time when he obtained the same; and it shall be lawful for any justice on information on oath of such demand and refusal, to summon before him the party refusing, and on being satisfied that such demand ought to be complied with, to order such information to be given within a certain time to be appointed by him; and any such party who shall refuse or neglect to comply with such order shall for every such offence forfeit and pay the sum of £5, and such refusal or neglect shall be primâ facie evidence that the person so refusing had full knowledge that the trade mark, together with which such article was sold, at the time of such selling was a forged trade mark, or was the trade mark of a person which had been used without lawful authority.-S. 6.

Marking any false indication of quantity, &c. upon an article, with intent to defraud, penalty a sum equal to the value of the article and the further sum not exceeding £5 and not less than 10s.-Every person who, with intent to defraud, shall put upon any article, or upon any cask, case, &c., with which any article shall be intended to be sold or exposed for sale, or for any purpose of trade or manufacture, or upon any case, frame, or other thing in or by means of which any article shall be intended to be exposed for sale, any false description respecting the number, quantity, or weight of such article, or of the place or country in which such article shall have been produced, or shall put upon any such article, cask, case, label, or thing, any word, letter, figure, signature, or mark, for the purpose of falsely indicating such article, or the mode of producing the same, or the ornamentation, shape, or configuration thereof, to be the subject of any existing patent, privilege, or copyright, shall for every offence forfeit a sum of money equal to the value of the article so sold or exposed for sale, and a further sum not exceeding £5, and not less than 10s.-S. 7.

Selling or exposing for sale after the 31st December, 1863, articles with false statement of quantities, &c., penalty not more than £5 or less than 58. -Every person who, after the 31st December, 1863, shall sell or expose for sale, or for any purpose of trade, or shall cause to be sold or exposed for sale or other purpose, any article upon which shall have been to his knowledge put, or upon any cask, cover, wrapper, reel, label, or other thing with which such article shall be sold or exposed for sale or other purpose, shall have been so put, or any false description of the number, quantity, &c., of such article, or the place or country in which such article shall have been produced, shall for every such offence forfeit a sum not exceeding £5, and not less than 5s.-S. 8.

Proviso that it shall not be an offence to apply names or words known to be used for indicating particular classes of manufactures.-Provided always, that the provisions of this Act shall not be construed so as to make it any offence for any person to apply to any article, or to any cask, wrapper, label, or other thing with which such article shall be sold or intended to be sold, any word generally used for indicating such 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 or expose for sale any article to which, or to any cask or other thing sold therewith, any such generally used word shall have been applied.-S. 9.

Description of trade marks and forged trade marks in indictments, &c. -In every indictment and document in which any trade mark shall be intended to be mentioned, it shall be sufficient to state the same to be a

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trade mark, without further or otherwise describing such trade mark, or setting forth any copy or fac-simile thereof; and in every indictment and document whatsoever in which it shall be intended to mention any forged or counterfeit trade mark, it shall be sufficient to state the same to be a forged trade mark, without further description.-S. 10.

Conviction not to affect any right or civil remedy.- The provisions in this Act contained of or concerning any Act or any proceeding, judgment, or conviction for any act hereby declared to be a misdemeanour or offence, shall not, nor shall any of them take away, diminish, or prejudicially affect any suit, right, or remedy which any person aggrieved may be entitled to at law, in equity, or otherwise, and shall not nor shall any of them exempt any person from answering or making discovery upon examination as a witness in any suit: Provided that no evidence which any person shall be compelled to give shall be admissible against such person in support of any indictment for a misdemeanour, or of any proceeding under the provisions of this Act.-S. 11.

Intent to defraud, &c., any particular person need not be alleged in an indictment, &c., or proved.—In every indictment, &e., for any misdemeanour against the provisions of this Act in which it shall be necessary to allege an intent to defraud, it shall be sufficient to allege that the person accused 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 indictment for such misdemeanour, and on the trial of any action to recover a penalty for such other offence, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the person accused did the act charged with intent to defraud.-S. 12.

Persons who aid in the commission of a misdemeanour to be also guilty.— Every person who shall aid, abet, counsel, or procure the commission of any offence which is by this Act made a misdemeanour shall also be guilty of a misdemeanour.-S. 13.

Punishment for misdemeanour under this Act.-Every person who shall be convicted or found guilty of any offence which is by this Act made a misdemeanour 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.— S. 14.*

After 31st December, 1863, vendor of an article with a trade mark to be deemed to contract that the murk is genuine.—In every case in which at any time after the 31st December, 1863, any person shall sell or contract to sell any article with any trade mark thereon, or upon any cask, cover, wrapper, reel, ticket, label, or other thing together with which such article shall be sold or contracted to be sold, the sale shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that every trade mark upon such article, or upon any such cask, or other thing, was genuine and true, and not forged, and not wrongfully used, unless the contrary shall be expressed in some

Sections 15, 16, 17, 18 relate to the recovery and disposal of penalties, summary proceedings before justices, and to the limitations of actions, &c.

writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee.-S. 19.

After 31st December, 1863, vendor of an article with description upon it of its quantity to be deemed to contract that the description was true.— In every case in which at any time after the 31st December, 1863, any person shall sell to any other person any article upon which, or upon any cask or other thing together with which such article shall be sold or contracted to be sold, any description of the number, quantity, measure, or weight of such article, or the place or country in which such article shall have been produced, the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that no such description was in any material respect false or untrue, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee.-S. 20.

In suits at law or in equity against persons for using forged trade marks, court may order article to be destroyed, and may award injunction, &c.-In every case in any suit against any person for forging any trade mark, or for fraudulently applying the same to any article, or for selling any article with any trade mark falsely applied thereto, or for preventing the repetition of any such act, in which the plaintiff shall obtain a judgment or decree against the defendant, the court shall have power to direct every such article to be destroyed or otherwise disposed of; and in every such suit in a court of law the court shall or may, upon giving judgment for the plaintff, award a writ of injunction to the defendant, commanding him to forbear from committing, and not by himself or otherwise to repeat any offence of the like nature as that of which he shall have been convicted by such judgment, and any disobedience of such writ shall be punished as a contempt of court; and in every such suit it shall be lawful for the court to make such order as such court shall think fit for the inspection of any manufacture carried on by the defendant in which any such forged trade mark shall be alleged to be used, and of every or any article in the possession of the defendant alleged to have thereon any forged trade mark, and every instrument used or capable of being used for producing the same; and any person who shall refuse or neglect to obey any such order shall be guilty of a contempt of court.-S. 21.

Persons aggrieved by forgeries may recover damages against the guilty parties. In every case in which any person shall do or cause to be done any of the wrongful acts following (that is to say), shall forge any trade mark, or shall apply any forged trade mark to any article, or to any cask, case, cover, wrapper, reel, ticket, label, or thing in or with which any article shall be sold or exposed for sale, or for any purpose of trade or manufacture; or shall inclose any article in, upon, under, or with any cask, case, label, or other thing to which any trade mark shall have been falsely applied; or shall apply or attach to any article, any case, ticket, label, or other thing to which any trade mark shall have been falsely applied; or shall inclose or attach any article in, upon, under, with, or to any cask, case, or other thing having thereon any trade mark of any other person; every person aggrieved by such act shall be entitled to maintain an action for damages in respect thereof against the person guilty of having done such act or causing the same to be done, and for preventing the repetition of the wrongful act.-S. 22.

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