The assignments, etc., on proof of title, are recorded on the register (sec. 33). It is a condition precedent to an action for the infringement of a new trade mark that the plaintiff should be the registered proprietor of the mark at the time when the action comes on for hearing. This last provision of proprietorship does not apply to an action for "passing-off". In actions for in fringement, evidence of passing off, or that the infringing mark is calculated to deceive, is not necessary. The court decides on the probability of deception by inspecting and comparing the marks (Hennessy v. Keating, 1907, 24 R.P.C. 485) The right to a trade mark lapses if the mark ceases to be dis tinctive and becomes publici juris; if it is separated from the goodwill (a trade mark can only be assigned with the goodwill) ; if the mark is applied by the trader to spurious goods (as where boxes of cigarettes were so labelled, in conformity with an alleged custom of the trade, as to indicate that they were of Russian manufacture, which was not the fact) ; or when the mark is abandoned (temporary disuse, however, is not abandonment unless the mark has in the meantime become associated with the goods of another trader) ; or where, as in the "linoleum" case (7 Ch. D. 834) it has become the name of the goods, and so merely descriptive; or after 14 years where registration is not renewed. In dealing with a claim for infringement the court must admit evidence of the usages of trade as to the get-up of the goods for which the mark is registered, and of any trade marks or get-up legitimately used with such goods by other persons (sec. 43).
The Trade Marks Act, 1919, provided for the registration in a separate division (Part B) of the register of trade marks, of a new class of trade marks, viz., marks which for not less than two years had been bona fide used in Great Britain in connection with any goods whether for sale in Great Britain or for exportation abroad, in order to indicate that they are the goods of the pro prietor of the mark (sec. 2). Such registration is prima facie evidence of exclusive right to the use of the trade mark (sec. 4). The use of the word "Anzac" with any trade, business, calling or profession without the authority of a secretary of State, or the request of the Government of Australia or of the Dominion of New Zealand, is prohibited by a statute passed in 1916.
of the Patents and Designs Act, 1907. The effect of that section is to confer on an applicant for the protection of a trade mark in one of the other contracting States a priority over other appli cants for registration in Great Britain during the space of four months. The section does not, however, exempt the applicant from the conditions and formalities incumbent on ordinary applicants for registration in Great Britain ; nor does the fact that the foreign application has been successful of itself give the applicant a right to have his mark accepted for registration. Guatemala and Sal vador, also signatory parties, have withdrawn from the convention.
The following is a list of the British Orders in Council that have been issued, applying to foreign countries sec. 91 of the Patents and Designs Act, 1907: Austria, Hungary, May 17, 1909 (art. 237 of Austrian Peace Treaty; as to Hungary, art. 220 of Treaty of Trianon) ; Belgium, June 26, 1884; Brazil, June 26, 1884; Bul garia, July 14, 1921 ; Cuba, Jan. 12, 1905; Czechoslovakia, March 11, 1920; Danzig, Free City of, Nov. 21, 1921; Denmark (includ ing the Faroe Islands), Nov. 20, 1890; Dominican Republic, Oct. 21, 1890; Ecuador, May 16, 1893 ; Estonia, 20, 1924 ; Fin land, Oct. 11, 1921; France, June 26, 1884; Germany, Oct. 9, 1903 ; Greece, Oct. 9, 1924 ; Honduras, Sept. 26, 1901 ; Italy, June 26, 1884 ; Japan, Oct. 7, 1899; Latvia, Oct. 12, 1925; Luxembourg, July 14, 1922; Mexico, May 28, 1889; Morocco Protectorate (French), Feb. 12, 1918; Netherlands, June 26, 1884 (East Colony), Nov. 17, 1888 (Curacoa and Surinam), May 17, 1890; Paraguay, Sept. 24, 1886; Poland, Nov. 25, 1919; Rumania, Oct. 13, 1920; Yugoslavia, July 14, 1921; Spain, June 26, 1884; Sweden (and Norway), July 9, 1885; Switzerland, June 26, 1884 ; Syria and Lebanon, Oct. 9, 1924; Tunis, June 26, 1884; Turkey, Oct. 12, 1925; United States, June 12, 1887; Uruguay Sept. 1886.
By Orders in Council, made under the provisions of the Foreign Jurisdiction Acts, penalties have been imposed on British subjects committing offences against the imperial Trade Mark Acts or the Orders in Council issued thereunder, e.g., Abyssinia ; China and Korea (1904) ; Egypt ; Muscat (1904) ; Turkey (1899) Persia, Persian coasts or islands (1889-19o1) ; Siam (1906) ; and Zanzibar (1906). Penalties for offences against the trade mark laws of British India are contained in the Bahrein, Muscat and Somaliland Orders in Council.
The following is a list of the orders issued as to British posses sions : Australia, Commonwealth of, March 26, 1907; British India, Oct. 13, 1920; Canada, Oct. 11, 1923 ; Ceylon, Aug. 7, 1905; New Zealand, Feb. 8, 1890; South Africa, June 25, 1918; Trinidad and Tobago, Aug. 12, 1907. These Orders in Council are printed in the Index to the Statutory Rules and Orders Revised, in force up to Dec. 31, 1927.