Merchandise Marks Act 1887

JurisdictionUK Non-devolved
Citation1887 c. 28


Merchandise Marks Act, 1887

(50 & 51 Vict.) CHAPTER 28.

An Act to consolidate and amend the Law relating to Fraudulent Mark on Merchandise.

[23rd August 1887]

B E it 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:

S-1 Short title.

1 Short title.

1. This Act may be cited as theMerchandise Marks Act, 1887.

S-2 Offences as to trade marks and trade descriptions.

2 Offences as to trade marks and trade descriptions.

(1)2.—(1.) Every person who—

(a ) forges any trade mark; or

(b) falsely applies to goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive; or

(c ) makes any die, block, machine, or other instrument for the purpose of forging, or of being used for forging, a trade mark; or

(d ) applies any false trade description to goods; or

(e ) disposes of or has in his possession any die, block, machine, or other instrument for the purpose of forging a trade mark; or

(f ) causes any of the things above in this section mentioned to be done,

shall, subject to the provisions of this Act, and unless he proves that he acted without intent to defraud, be guilty of an offence against this Act.

(2) (2.) Every person who sells, or exposes for, or has in his possession for sale, or any purpose of trade or manufacture, any goods or things to which any forged trade mark or false trade description is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, as the case may be, shall, unless he proves—

(a .) That having taken all reasonable precautions against committing an offence against this Act, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark, mark, or trade description; and

(b .) That on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; or

(c.) That otherwise he had acted innocently;

be guilty of an offence against this Act.

(3) (3.) Every person guilty of an offence against this Act shall be liable—

(i.) on conviction on indictment, to imprisonment, with or without hard labour, for a term not exceeding two years, or to fine, or to both imprisonment and fine; and

(ii.) on summary conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding twenty pounds, and in the case of a second or subsequent conviction to imprisonment, with or without hard labour, for a term not exceeding six months, or to a fine not exceeding fifty pounds; and

(iii.) in any case, to forfeit to Her Majesty every chattel, article, instrument, or thing by means of or in relation to which the offence has been committed.

(4) (4.) The court before whom any person is convicted under this section may order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit.

(5) (5.) If any person feels aggrieved by any conviction made by a court of summary jurisdiction, he may appeal therefrom to a court of quarter sessions.

(6) (6.) Any offence for which a person is under this Act liable to punishment on summary conviction may be prosecuted, and any articles liable to be forfeited under this Act by a court of summary jurisdiction may be forfeited, in manner provided by the Summary Jurisdiction Acts : Provided that a person charged with an offence under this section before a court of summary jurisdiction shall, on appealing before the court, and before the charge is gone into, be informed of his right to be tried on indictment, and if he requires be so tried accordingly.

S-3 Definitions.

3 Definitions.

(1)3.—(1.) For the purposes of this Act—

The expression ‘trade mark’ means a trade mark registered in the register of trade marks kept under the Patents, Designs, and Trade Marks Act, 1883 , 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 the one hundred and third section of the Patents, Designs, and Trade Marks Act, 1883, are, under Order in Council, for the time being applicable:

The expression ‘trade description’ means any description, statement, or other indication, direct or indirect,

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

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

(c .) as to the mode of manufacturing or producing any goods, or

(d.) as to the material of which any goods are composed, or

(e.) 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 Act:

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 a false trade description within the meaning of this Act:

The expression ‘goods’ means anything which is the subject of trade, manufacture, or merchandise:

The expressions ‘person,’‘manufacturer, dealer, or trader,’ and ‘proprietor’ include any body of persons corporate or unincorporate:

The expression ‘name’ includes any abbreviation of a name.

(2) (2.) The provisions of this Act respecting the application of a false trade description to goods shall 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.

(3) (3.) The provisions of this Act respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, shall 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 enactment the expression false name or initials means as applied to any goods, any name or initials of a person which—

(a ) are not a trade mark, or part of a trade mark, and

(b ) are identical with, or a colourable imitation of the name or initials of a person carrying on business in connexion with goods of the same description, and not having authorised the use of such name or initials, and

(c ) are either those of a fictitious person or of some person not bon fide carrying on business in connexion with such goods.

S-4 Forging trade mark.

4 Forging trade mark.

4. A person shall be 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 Act referred to as a forged trade mark.

Provided that in any prosecution for forging a trade mark the burden of proving the assent of the proprietor shall lie on the defendant.

S-5 Applying marks and descriptions.

5 Applying marks and descriptions.

(1)5.—(1.) A person shall be 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

(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 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) (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 to any covering, label, reel, or other thing.

(3) (3.) A person shall be deemed to falsely apply to goods a trade mark or mark, who without the assent of the proprietor of a trade mark applies such trade mark, or a mark so nearly resembling it as to be calculated to deceive, but 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.

S-6 Exemption of certain persons employed in ordinary course of business.

6 Exemption of certain persons employed in ordinary course of business.

6. Where a defendant is charged with...

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