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nearly resembling a trade-mark as to be calculated to deceive, or trade description has been applied; or (d) uses
a trade-mark or mark or trade description in any manner calculated to lead to the belief that the goods in connexion with which it is used are designated or described by that trade-mark, or mark or trade description.
(2) 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.
A trade-mark, or mark, or trade description, shall be deemed to be applied, whether it is woven, impressed or otherwise worked into, or annexed or affixed to, the goods, or into or to any covering, label, reel or other thing.
(3) A person shall be deemed to falsely apply to goods a trademark or mark who, without the assent of the proprietor of a trademark, applies to any goods such trade-mark, or a mark so nearly resembling it as to be calculated to deceive; and in any prosecution for falsely applying a trade-mark or mark to goods the burden of proving the assent of the proprietor shall lie on the defendant.
As to persons employed in the ordinary course of business in
5. Where a defendant is charged with making any die, block, machine or other instrument for the purpose of forging, or being used for forging, a trade-mark, or with falsely applying to goods any trade-mark, or any mark so nearly resembling a trade-mark as making trade- to be calculated to deceive, or with applying to goods any false trade description, or causing any of the things in this section mentioned to be done, and proves
mark dies, &c.
(a) that in the ordinary course of his business he is employed, on behalf of other persons, to make dies, blocks, machines or other instruments for making, or being used in making, trade-marks, or, as the case may be, to apply marks or descriptions to goods, and that in the case which is the subject of the charge he was so employed by some person resident within the Colony, and was not interested in the goods by way of profit or commission dependent on the sale of such goods; and
(b) that he took reasonable precautions against committing the offence charged; and
(c) that he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trademark, mark or trade description; and
(d) that he gave to the prosecutor all the information in his power with respect to the persons on whose behalf the trade-mark, mark or description was applied
he shall be discharged from the prosecution, but shall be liable to pay the costs incurred by the prosecutor, unless he has given due notice to him that he will rely on the above defence.
of Ordinance to watches.
6. Where a watch-case has thereon any words or marks which Application 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 primâ facie be deemed to be a description of that country within the meaning of this Ordinance, and the provisions of this Ordinance with respect to goods to which a false trade description has been applied, and with respect to selling, or exposing, or having in possession, for sale or any purpose of trade or manufacture, goods with a false description shall apply accordingly; and for the purposes of this section the expression "watch" means all that portion of a watch which is not the watch-case.
7. In any information, pleading, proceeding or document in Sufficiency of which any trade-mark or forged trade-mark is intended to be description of mentioned it shall be sufficient, without further description, and pleadings, &c. without any copy or facsimile, to state that trade-mark or forged trade-mark to be a trade-mark or forged trade-mark.
8. In any prosecution for an offence against this Ordinance—
(1) A defendant and his wife, or her husband, as the case may be, may, if the defendant thinks fit, be called as a witness, and, if called, shall be sworn and examined, and may be cross-examined and re-examined, in like manner as any other witness; and
(2) In the case of imported goods evidence of the port of shipment shall be primâ facie evidence of the place or country in which the goods were made or produced.
9. Any person who, being within the Colony, procures, counsels, Accessories to aids, abets or is accessory to the commission without the Colony of certain acts any act which, if committed within the Colony, would under this without the Ordinance be a misdemeanour shall be guilty of that misdemeanour Colony. as a principal and be liable to be proceeded and informed against, and tried and convicted in any part of or place in the Colony in which he may be, as if the misdemeanour had been there committed.
10. (1) Where upon information of an offence against this Search Ordinance a District Commissioner has issued, either a summons warrants. requiring the defendant charged by such information to appear to answer to the same, or a warrant for the arrest of such defendant, and, either the said District Commissioner, on or after issuing the summons or warrant, or any other District Commissioner, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which such offence has been committed are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such District Commissioner may issue a warrant under his hand, by virtue of which it shall be lawful for any constable
Forfeiture in special cases.
Disposal of forfeited articles, and compensation to innocent parties.
named or included in such warrant to enter such house, premises, or place at any reasonable time by day and to search there for, and seize and take away, such goods and things; and any goods or things seized under any such warrant as last aforesaid shall be brought before the Court of the District Commissioner of the District in which such goods or things are found, for the purpose of its being determined whether the same are or are not liable to forfeiture under this Ordinance.
(2) If the owner of any goods or things which, if the owner or possessor thereof had been convicted under this Ordinance, would be liable to forfeiture is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing forfeiture of such goods or things, and the District Commissioner of the District in which such goods or things are found may cause notice to be advertised, stating that, unless cause is shown to the contrary at the time and place named in such notice, such goods or things will be forfeited, and at such time and place the District Commissioner, unless the owner, or some person on his behalf, or other person interested in the goods or things, shows cause to the contrary, may order such goods or things or any of them to be forfeited.
(3) Any goods or things forfeited under this section, or under any other provision of this Ordinance, may be destroyed or otherwise disposed of, all trade-marks and trade descriptions being first obliterated, in such manner as the Court by which the same are declared to be forfeited may direct; and the Court may, out of any proceeds which may be realized by the disposition of such goods, award to any innocent party compensation for any loss that he may have sustained in dealing with such goods.
12. No prosecution for an offence against this Ordinance shall prosecutions. be commenced after the expiration of three years next after the commission of such offence, or one year next after the first discovery thereof by the prosecutor, whichever expiration first happens.
11. On any prosecution under this Ordinance the Court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant, having regard to the information given by, and the conduct of, the defendant and the prosecutor respectively.
13. If any person feels aggrieved by any conviction or order made under this Ordinance by a District Commissioner, he may, by leave of a Divisional Court, appeal against such conviction, either upon any question or questions of fact, or upon any question or questions of law, to such last mentioned Court."
14. The Chief Justice of the Colony may, with the approbation of the Legislative Council from time to time make, amend, vary,
or revoke such rules, relating to appeals under this Ordinance, as he shall deem expedient; and such rules shall take effect within six weeks after the same shall have been approved by the Legislative Council, and shall thereupon be binding and obligatory, and be of the like force and effect, as if the provisions therein contained had been herein expressly enacted.
15. Such rules may respectively limit and provide for, among Their other matters, the cases and circumstances in and under which such contents. appeals may be brought, the time within which such appeals may be brought, the terms upon which such appeals may be brought, the costs of such appeals, the interim or final disposition of the property in question in such appeals, and the suspension or execution, pending such appeals, of the judgments from which such appeals are brought.
16. Nothing herein contained shall affect any enactment or Proviso. provision of the Criminal Procedure Ordinance or the Supreme Court Ordinance.
17. And whereas it is expedient to make provision for prohibit- Prohibition of ing the importation of goods which, if sold, would be liable importation of to forfeiture under this Ordinance, be it therefore enacted as forfeiture goods liable to follows:
under this Ordinance.
(1) All such goods, and also all goods of foreign manufacture, bearing any name or trade-mark being or purporting to be the name or trade-mark of any manufacturer, dealer or trader in the United Kingdom, unless such name or trade-mark is accompanied by a definite indication of the country in which the goods were made or produced, are hereby prohibited to be imported into the Colony and, subject to the provisions of this section, shall be included among goods absolutely prohibited to be imported, as if they were specified in that behalf in the Customs Ordinance.
(2) Before detaining any such goods, or taking any further proceedings with a view to the forfeiture thereof under the law relating to the Customs, the Collector of Customs may require the regulations under this section, whether as to information, security, conditions or other matters, to be complied with, and may satisfy himself in accordance with those regulations that the goods are such as are prohibited by this section to be imported.
(3) The Governor in Council may from time to time make, revoke, and vary regulations, either general or special, respecting the detention and forfeiture of goods the importation of which is prohibited by this section, and the conditions, if any, to be fulfilled before such detention and forfeiture, and may by such regulations determine
Ordinance as to false trade descriptions
in certain cases.
the information, notices, and security to be given, and the evidence requisite for any of the purposes of this section, and the mode of verification of such evidence. (4) Where there is on any goods a name which is identical with or a colourable imitation of the name of a place in the United Kingdom, that name, unless accompanied by the name of the country in which such place is situate, shall be treated for the purposes of this section as if it were the name of a place in the United Kingdom. (5) Such regulations may apply to all goods the importation of
which is prohibited by this section; or different regulations may be made respecting different classes of such goods, or of offences in relation to such goods.
(6) The regulations may provide for the informant reimbursing the Collector of Customs all expenses and damages incurred in respect of any detention made on his information, and of any proceedings consequent on such detention.
(7) All regulations under this section shall be published in the Government Gazette (Amended.)
18. On the sale or in the contract for the sale of any goods to which a trade-mark, or mark or trade description has been applied, the vendor shall be deemed to warrant that the mark is a genuine trade-mark and not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Ordinance, unless the contrary is expressed in some writing signed by or on behalf of the vendor and delivered at the time of the sale or contract to and accepted by the vendee.
19. Where, at the passing of this Ordinance a trade description is lawfully and generally applied to goods of a particular class, or manufactured by a particular method, to indicate the particular class or method of manufacture of such goods, the provisions of this Ordinance with respect to false trade descriptions shall not apply to such trade description, when so applied; provided that, where such trade description includes the name of a place or country, and is calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, and the goods were not actually made or produced in that place or country, this section shall not apply, unless there is added to the trade description, immediately before or after the name of that place or country, in an equally conspicuous manner with such name, the name of the place or country in which the goods were actually made or produced, with a statement that they were made or produced there.
20.-(1) This Ordinance shall not exempt any person from any action, suit or other proceeding which might, but for the provisions of this Ordinance, be brought against him.