lycnces.—A manufacturer, (realer, or trader is guilty of an offence under these Acts, unless he proves th:tt he acted without intent to defraud, who—(a) forges a trade-mark ; or (b) falsely applies to goods a trade mark, or mark so nearly resembling a trade-mark as to be calculated to deceive; or (c) makes a die, block, machine, or other instrument for the purpose of forging, or of being used for forging, a trade-mark ; or (d) applies a false trade description to goods ; or (c) disposes of or has in his possession a die, block, machine, or other instrument for the purpose of forging a trade-mark ; or (f ) causes any of the foregoing things to be done. He is also guilty of an offence mho sells, or exposes for, or has in his possession for, sale, or any purpose of trade or manufacture, any goods or things to which a forged trade-mark or false trade description is applied, or to which a trade-mark or mark so nearly resembling a trade-mark as to be calculated to deceive is falsely applied, as the case may be. A mineral water dealer who refills with his own water a bottle impressed with the name of another manufacturer is guilty of a false application. But a verso]) charged with selling or exposing, or having in his possession for sale, is entitled to be discharged if he can prove—(a) That having taken all rea sonable precautions against committing an offence, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade-markonark, or other description; and (b) that on demand made by or on behalf of the prosecutor, he gave all the information in his pow er with respect to the persons from w hom lie obtained the goods or things ; or (c) that otherwise Ile had acted innocently. The law thus makes every effort to reach and punish the real offender only. A person guilty of an offence is liable, if convicted on indictment, to two years' int prisonnient with hard labour, or to a fine, or to both imprisonment and fine ; or, if convicted summarily, to four months' intprisonment with hard labour, or to a fine of 4.'20, and on a second conviction to six months' hard labour, or to a fine of 1'50. But in any case he forfeits every article or instrument by means of or in relation to which the offence has been committed. In these cases no one can be lawfully convicted summarily unless he has first, upon his own application, bad the option of, and refused, a trial upon an indictment. Any one feeling aggrieved at his conviction by a court of summary conviction can appeal therefrom to a Quarter Sessions. It is also specially'provided that no prosecution under these Acts can be commenced after the expiration of three years next after the commission of the offence, or one year next after the first discovery thereof by the prosecutor, whichever expiration first happens ; and that on a prosecution the prosecutor may be ordered to pay the defendant's costs, or the defendant those of the prosecutor. Proceedings under these Acts are within the Vexatious Indictments Act. A person is deemed to forge a trade-mark who either—(a) without the assent of its pro prietor makes that trade-mark or a mark so nearly resembling it as to be calculated to deceive ; or (b) falsifies a genuine trade-mark, whether by alteration, addition, effacement or otherwise. But in a prosecution for forging a trade - mark the burden of proving the assent of the proprietor lies, by express statutory provision, on the defendant.
Sale of marked goods.—Implied warranty.—On the sale or in the con tract for the sale of any goods to which a trade-mark has been applied, the vendor is presumed by the law to warrant that the mark is a genuine trade-mark and not forged or falsely applied. There is a similar presumption with regard to other marks or a trade description. But this
presumption can be rebutted by proof that the contrary was 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.
Applying marks and descriptions. — Certain circumstances may be enumerated under which a manufacturer, dealer, or trader, will be con sidered to have applied, within the meaning of the Acts, a trade-mark or mark or trade description to goods. These circumstances exist if he—(a) Applies it to the goods themselves ; or (b) applies it to a 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—" covering" including any stopper, cask, bottle, vessel, box, cover, capsule, case, frame, or wrapper; and "label" any band or ticket ; (c) places, encloses, or annexes any goods which are sold or exposed or had in possession for any purpose of sale, trade, or manufacture, in, with, or to any covering, label, reel, or other thing to which a trade-mark or trade description has been applied ; or (d) uses a trade-mark or mark or trade description in any manner calcu lated to lead to the belief that the goods in connection with which it is used are designated or described by that trade-mark or mark or trade description. A false description may thus be applied within the meaning of the Acts by including it in an invoice sent with the goods. A trade-mark or mark or trade description is "applied " whether it is woven, impressed, or otherwise worked into, or annexed, or affixed to the goods, or to a covering, label, reel, or any other thing. And a business man is said to " falsely apply " a trade-mark or mark to goods if he applies it without the proprietor's assent, or so applies a copy thereof calculated to deceive. In a prosecution for falsely applying a trade-mark or mark, the burden of proving the assent of the proprietor lies on the defendant.
Exemption of employees.—In some cases under these Acts a defendant is entitled to be discharged from the prosecution if he can in his defence show certain mitigating circumstances; but even though he should be consequently discharged, he will yet be liable to pay the costs of the prosecutor unless he has given due notice to him that he will rely upon that defence. The cases in which such a discharge is possible are those where the defendant is charged with making a die, block, machine, or other instrument for the purpose of forging, or being used for forging, a trademark; or with falsely applying to goods a trade-mark or a mark resembling a trade-mark ; or with applying to goods a false trade description ; or with causing any of the foregoing things to be done. The defence he must prove is—(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 in the United Kingdom, and was not interested in the goods by way of profit or commission dependent on the sale of the 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 trade - mark, mark, or false 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.