1 CHAPTER XLIV.

FORGERY OF TRADE MARKS, FRAUDULENT MARKING OF MERCHANDISE-OFFENCES RESPECTING PATENTED ARTICLES, INDUSTRIAL DESIGNS AND THE MARKING OF TIMBER.

ARTICLE 520.

DEFINITIONS.

2 IN THIS chapter:

(a.) The expression "trade mark" means a trade mark or industrial design registered in accordance with “The Trade Mark and Design Act" and the registration whereof is in force under the provisions of the said Act, and includes any trade mark which, either with or without registration, is protected by law in any British possession or foreign State to which the provisions of section one. hundred and three of the Act of the United Kingdom, known as "The Patents, Designs, and Trade Marks Act, 1883," are, in accordance with the provisions of the said Act, for the time being applicable;

(b.) The expression "trade description "trade description" means any description, statement, or other indication, direct or indirect,

(i.) as to the number, quantity, measure, gauge or weight of any goods; or

(ii.) as to the place or country in which any goods were made or produced; or

1 S. D. Arts. 364, 365.

The Merchandise Marks Act, 1862, on which Articles 364 and 365 of Stephen's Digest are founded was repealed by the Merchandise Marks Act, 1887. The latter Act was followed in Canada in The Merchandise Marks Offences Act, 1888 (51 Vict. (D.) c. 41) by which The Trades Marks Offences Act (R. S. C. c. 166) was repealed.

251 Vict. (D.) c. 41, s. 2; 50 & 51 Vict. c. 28, ss. 3, 5.

(iii.) as to the mode of manufacturing or producing any goods; or

(iv.) as to the material of which any goods are composed; or

(v.) as to any goods being the subject of an existing patent, privilege, or copyright;

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 any of the above matters, shall be deemed to be a trade description within the meaning of this chapter.

(c.) 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, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, where that alteration makes the description false in a material respect; and the fact that a trade description is a trade mark, or part of a trade mark, shall not prevent such trade description being deemed to be a false trade description within the meaning of this chapter;

(d.) The expression "goods" means anything which is merchandise or the subject of trade or manufacture;

(e.) The expression "covering" includes any stopper, cask, bottle, vessel, box, cover, capsule, case, frame or wrapper; and the expression "label" includes any band or ticket;

(f) The expressions "person, manufacturer, dealer, or trader," and " proprietor" include any body of persons corporate or unincorporate;

(g.) The expression "name" includes any abreviation of a name.

The provisions of this chapter respecting the application of a false trade description to goods extend to the application to goods of any such figures, words or marks, or arrangement or combination thereof, whether including

a trade mark or not, as are reasonably calculated to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are:

The provisions of this chapter respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, extend to the application to goods of any false name or initials of a person, and to goods with the false name or initials of a person applied, in like manner as if such name or initials were a trade description, and for the purpose of this chapter the expression "false name or initials" means as applied to any goods, any name or initials of a person. which

(i.) are not a trade mark, or part of a trade mark; and (ii.) are identical with, or a colorable imitation of, the name or initials of a person carrying on business in connection with goods of the same description, and not having authorized the use of such name or initials; or

(iii) are either those of a fictitious person or of some person not bonâ fide carrying on business in connection with such goods.

1

ARTICLE 521.

WORDS OR MARKS ON WATCH CASES.

1 Where a watch case has thereon any words or marks which constitute, or are by common repute considered-as constituting, a description of the country in which the watch was made, and the watch bears no description of the country where it was made, those words or marks shall prima facie be deemed to be a description of that country within the meaning of this Chapter, and the provisions of this Chapter with respect to goods to which a false description has been applied, and with respect to selling

151 Vict. (D.) c. 41, s. 11; 50 & 51 Vict. c. 23, s. 7.

or exposing for, or having in possession for sale, or any purpose of trade or manufacture, goods with a false trade description, shall apply accordingly; and for the purposes of this Article the expression "watch" means all that portion of a watch which is not the watch case.

ARTICLE 522.

DEFINITION OF FORGERY OF A TRADE MARK-BURDEN OF PROOF.

Every one is deemed to forge a trade mark who either—

(a.) without the assent of the proprietor of the trade mark makes that trade mark or a mark so nearly resembling that trade mark as to be calculated to deceive;

or

(b.) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise:

And any trade mark or mark so made or falsified is, in this chapter, referred to as a forged trade mark :

And in any prosecution for forging a trade mark the burden of proving the assent of the proprietor lies on the defendant.

ARTICLE 523.

TRADE MARKS TO GOODS

DEFINITION OF APPLYING

2

BURDEN OF PROOF.

Every one is deemed to apply a trade mark, or mark, or trade description to goods who

(a.) applies it to the goods themselves; or

(b.) applies it to any covering, label, reel, or other thing in or with which the goods are sold or exposed or had in possession for any purpose of sale, trade or manufacture;

or

151 Vict. (D.) c. 41, s. 3; 50 & 51 Vict. c. 28, s. 4. 251 Viet. (D.) c. 41, s. 4; 50 & 51 Viet. c. 28, s. 5.