THE MERCHANDISE MARKS ACT, 1889

ACT No. IV OF 1889

[ For Statement of Objects and Reasons, see Gazette of India, 1888, Pt. V, p. 109; for Report of the Select Committee, see ibid., 1889, Pt. V, p. 27; and for Proceedings in Council, see ibid., 1888, Pt. VI, pp. 111 and 136, and ibid., 1889, Pt. VI, p. 38.

The Act has been applied to the Chittagong Hill‑tracts by Bengal Regulation 6 of 1942.

It has been applied to Phulera in the Excluded Area of Upper Tanawal to the extent the Act is applicable in the N.‑W.F.P., subject to certain modi fications; and also extended to the Excluded Area of Upper Tanawal (N.‑W.F.P.) other than Phulera with effect from such date and subject to such modifications as may be notified, see N.‑W.F.P. (Upper Tanawal) (Excluded Area) Laws Regulation, 1950.

The Act has been extended to the State of Bahawalpur see G. G. O. 11 of 1953, as amended.

The Act has been applied to Baluchistan, by Reg. 13 of 1940 (see also Reg. 3 of 1954).

It has been extended to the Leased Areas of Baluchistan, see the Leased Areas (Laws)Order, 1950 (G. G. O. 3 of 1950); and applied in the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt. I, p. 1499.

Extended to the Baluchistan States Union, see G. G. O. 4 of 1953, s. 2 and Sch.

The Act has been and shall be deemed to have been brought into force in Gwadur with effect from the 8th September, 1958, by the Gwadur (Appli cation of Central Laws) Ordinance, 1960 (37 of 1960), s. 2.]

[1st March, 1889]

An Act to amend the Law relating to Fraudulent Marks on Merchandise.

WHEREAS it is expedient to amend the law relating to fraudu lent marks on merchandise; It is hereby enacted as follows:‑

1. Title, extent and commencement ‑(1) This Act may be called the [The word "Indian" omitted by A. O., 1949, Sch.] Merchandise Marks Act, 1889.

[Sub‑section (2) as amended by A. O., 1949, Arts. 3 (2) and 4, has been subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955).] (2) It extends to the whole of Pakistan; and

[The words "subject to the provision of the last section of this Act" rep. by the Indian Merchandise Marks and Sea Customs Acts Arndt. Act, 1891 (9 of 1891), s. 1.]

(3) It shall come into force on the first day of April; 1889.

2.Definition. In this Act, unless there is something repugnant in the subject or context,‑

(1) [Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 3(1).] "trade mark" has the meaning assigned to that expression in section 478 of the Pakistan Penal Code as amended by this Act:

(2) [Cf. the Merchandise a Marks Act, 1887 (50 8e 51 Vict, c. 28), s. 3(1)] '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, or the time at 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 com posed, or

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

and the use of any numeral, 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:

(3) "false trade description" means a trade description which is untrue 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 alter ation makes the description untrue 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:

(4) "goods" means anything which is the subject of trade or manufacture: and

(5) "name" includes any abbreviation of a name.

AMENDMENT OF THE PAKISTAN PENAL CODE

3. [Substitution of hew sections for sections 478 to 489 of the Indian Penal Code.] Rep. by the Repealing Act, 1938 (I of 1938), s. 2 and Schedule.

TRADE DESCRIPTION

4. Provisions supplemental to the definition of false trade description‑ (1) 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 such numerals, words or marks, or arrangement or combination thereof, whether including a trade mark or not, as are or is 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 merchan dise they really are, and to goods having such numerals, words or marks, or arrangement or combination, applied thereto. [Cf. the Merchandise Marks Act. 1887 (50 & 51 Vict., c. 28), s. 3 (2). 2 Cf. ibid., s. 3(3).]

[Cf. ibid., s. 5.](2) 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‑

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

(b) being identical with, or a colourable 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.

(3) A trade description which denotes or implies that there are contained in any goods to which it is applied more yards, feet or inches than there are contained therein standard yards, standard feet or standard inches is a false trade description.

5. Application of trade descriptions ‑[Cf.ibid. s.5] (1) A person shall be deemed to apply a trade des cription 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 are exposed or had in possession for sale or any purpose of trade or manufacture, or

(c) places, encloses or annexes any goods which are sold, or are exposed or had in possession for sale or any purpose of trade or manufacture, in, with or to any covering, label, reel or other thing to which a trade description has been applied, or

(d) uses a trade description in any manner reasonably calculated to lead to the belief that the goods in connec tion with which it is used are designated or described by that trade description.

(2) A 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 any covering, label, reel or other thing.

(3) 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.

6. Penalty for applying a false trade description. [Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 2(1).] If a person applies a false trade description to goods, he shall, subject to the provisions of this Act, and unless he proves that he acted without intent to defraud, be punished with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, and in the case of a second or subsequent conviction with imprisonment which may extend to one year, or with fine, or with both.

7. Penalty for selling goods to which a false trade a description is applied. If a person sells, or exposes or has in possession for sale or any purpose of trade or manufacture, any goods or things to which a false trade description is applied, he shall, unless he proves‑

(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade des cription, and

(b) that, on demand made by or on behalf of the prose cutor, 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 punished with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, and in case of a second or subsequent conviction with imprisonment which may extend to one year, or with fine, or with both.

UNINTENTIONAL CONTRAVENTION OF THE LAW RELATING TO MARKS AND DESCRIPTIONS.

8. Unintentional Contravention of the Law relating to Marks and Descriptions. [Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 6]Where a person is accused under section 482 of the Pakistan Penal Code of using a false trade mark or property mark by reason of his having applied a mark to any goods, property or receptacle in the manner mentioned in section 480 or section 481 of that Code, as the case may be, or under section 6 of this Act of applying to goods any false trade description, or under section 485 of the Pakistan Penal Code of making any die, plate or other instrument for the purpose of counterfeiting a trade mark or property mark, and proves‑-

(a) that in the ordinary course of his business he is em ployed, on behalf of other persons, to apply trade marks or property marks, or trade descriptions, or, as the case may be, to make dies, plates or other instruments for making, or being used in making, trade marks or property marks, and that in the case which is the subject of the charge he was so employed and was not interested in the goods or other thing by way of profit or commission dependent on the sale thereof, and

(b) that he took reasonable precautions against commit ting 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 mark or description, and

(d) that, on demand made by or on behalf of the prose cutor, he gave all the information in his power with respect to the persons on whose behalf the mark or description was applied,

he shall be acquitted.

FORFEITURE OF GOODS

9. Forfeiture of goods ‑[Cf. ibid., s. 2 (3) (iii).] (1) When a person is convicted under section 482 of the Pakistan Penal Code of using a false trade mark, or under section 486 of that Code of selling, or exposing or having in possession for sale or any purpose of trade or manufacture, any goods or things with a counterfeit trade mark applied thereto, or under section 487 or section 488 of that Code of making, or making use of, a false mark, or under section 6 or section 7 of this Act of applying a false trade description to goods or of selling, or exposing or having in possession for sale or any purpose of trade or manufacture, any goods or things to which a false trade description is applied, or is acquitted on proof of the matter or matters specified in section 486 of the Pakistan Penal Code or section 7 or section 8 of this Act, the Court convicting or acquit ting him may direct the forfeiture to [Subs. by A. O., 1961, Art. 2, for "Her Majesty" (with effect from the 23rd March, 1956).] Government of all goods and things by means of, or in relation to, which the offence has been committed or, but for such proof as aforesaid, would have been committed.

(2) When a forfeiture is directed on a conviction, and an appeal lies against the conviction, an appeal shall lie against the forfeiture also.

(3) When a forfeiture is directed on an acquittal and the goods or things to which the direction relates are of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from the date of the direction, to the Court to which in appealable cases appeals lie from sentences of the Court which directed the forfeiture.

AMENDMENT OF THE SEA CUSTOMS ACT, 1878

10. [Amendment of the Sea Customs Act, 1878.] Rep by the Repealing Act, 1938 (I of 1938), s. 2 and Schedule.

11. [Amendment of the Sea Customs Act, 1878.] Rep by the Repealing Act, 1938 (I of 1938), s. 2 and Schedule.

STAMPING OF LENGTH OF PIECE‑GOODS MANUFACTURED IN PAKISTAN. [Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th&ctober, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A. O., 1949, Arts. 3(2) and 4, for "British India".]

12.Stamping of length of piece goods manufactured in Pakistan ‑(1) Piece‑goods, such as are ordinarily sold by length or by the piece, which have been manufactured in premises which are a factory as defined in the [See now the Factories Act, 1934 (25 of 1934).] Indian Factories Act, 1881, shall not be removed from those premises without having conspicuously e stamped in English numerals on each piece the length thereof in standard yards, or in standard yards and a fraction of such a yard, according to the real length of the piece.

(2) If any person removes or attempts to remove any such piece‑goods from any such premises without the length of each piece being stamped in the manner mentioned in sub‑section (1), every such piece, and everything used for the packing or removal thereof, shall be forfeited to [Subs. by A. O., 1961, Art. 2, for "Her Majesty" (with effect from the 23rd March, 1956).] Government, and such person shall be punished with fine which may extend to one thousand rupees.

SUPPLEMENTAL PROVISIONS

13. Evidence of origin of goods imported by sea. [Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 10(2).] In the case of goods brought into [Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A. O., 1949, Arts. 3 (2) and 4, for "British India".] Pakistan by sea, evidence of the Port of shipment shall, in a prosecution for an offence against this Act or section 18 of the Sea Customs Act, 1878, as amended by this Act, be prima facie evidence of the place or country in which the goods were made or produced.

14. Costs of defence or prosecution ‑[Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 14.](1) On any such prosecution as is mentioned in the last foregoing section or on any prosecution for an offence against any of the sections of the Pakistan Penal Code as amended by this Act, which relate to trade, property and other marks, the Court may order costs to be paid to the defendant by the prose cutor or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.

(2) Such costs shall, on application to the Court, be recover able as if they were a fine.

15. Limitation of Prosecution. [Cf. ibid., s. 15.]No such prosecution as is mentioned in the last fore going section shall be commenced after the expiration of three years next after the commission of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens.

16. Authority of the Central Government to issued instructions as to administration of this Act ‑(1) The [Subs. by A. O., 1937, for "G. G. in C.".] Central Government may, by notification [Subs. ibid., for "in the Gazette of India and in local official Gazettes".] in the official Gazette, issue instructions [For notification containing such instructions, see Gen. R. & O.] for observance by Criminal Courts in giving effect to any of the provisions of this Act.

(2) Instructions under sub‑section (1) may provide, among other matters, for the limits of variation, as regards number, quantity, measure, gauge or weight, which are to be recognized by Criminal Courts as permissible in the case of any goods.

17. Implied warranty on sale of marked goods. [Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 17.] 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 seller shall be deemed to warrant that the mark is a genuine mark and not counterfeit or falsely used, or that the trade description is not a false trade description within the mean ing of this Act, unless the contrary is expressed in some writing signed by or on behalf of the seller and delivered at the time of the sale or contract to and accepted by the buyer.

18. Saving ‑[Cf. ibid., s. 19.] (1) Nothing in this Act shall exempt any person from any suit or other proceeding which might, but for anything in this Act, be brought against him.

(2) Nothing in this Act shall entitle any person to refuse to make a complete discovery or to answer any question or interro gatory in any suit or other proceeding, but such discovery or answer shall not be admissible in evidence against such person in any such prosecution as is mentioned in section 14.

(3) Nothing in this Act shall be construed so as to render liable to any prosecution or punishment any servant of a master resident in [Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A. O., 1949, Arts. 3(2) and 4, for "British India".] Pakistan who in good faith acts in obedience to the instructions of such master, and on demand made by or on behalf of the prosecutor, has given full information as to his master and as to the instructions which he has received from his master.

19. Definition of piece-goods. [The original section 19 relating to the date of commencement of the Act as regards unstamped piece‑goods, and the words "Transitory Provision" prefixed thereto, were rep. by the Indian Merchandise Marks and Sea Customs Acts Amendment Act, 1891 (9 of 1891), s. 2; and the present ss. 19 to 22 were ins. ibid., s. 4.] For the purpose of section 12 of this Act and clause (f) of section 18 of the Sea Customs Act, 1878, as amended by this of Act, the [Subs. by A. O., 1937, for "G. G. in C.".] Central Government may, by notification in the [Subs. ibid., for "Gazette of India".] official Gazette, [For rules made under this section, see Gen. R. & O.] declare what classes of goods are included in the expression `piece‑goods, such as are ordinarily sold by length or by the piece'.

20. Determination of character of goods by sampling ‑(1) The [Subs. by A. O., 1937, for "G.G. in C.".] Central Government may make [For rules made under this section, see Gen. R. & O.] rules, for the purposes of this Act, to provide, with respect to any goods which purport or are alleged to be of uniform number, quantity, measure, gauge or weight, for the number of samples to be selected and tested and for the selection of the samples.

(2) With respect to any goods for the selection and testing of samples of which provision is not made in any rules for the time being in force under sub‑section (1), the Court or officer of Customs, as the case may be, having occasion to ascertain the number, quantity, measure, gauge or weight of the goods, shall, by order in writing, determine the number of samples to be selected and tested and the manner in which the samples are to be selected.

(3) The average of the results of the testing in pursuance of rules under sub‑section (1) or of an order under sub‑section (2) shall be prima facie evidence of the number, quantity, measure, gauge or weight, as the case may be, of the goods.

(4) If a person having any claim to, or in relation to, any goods of which samples have been selected and tested in pursu ance of rules under sub‑section (1) or of an order under sub section (2), desires that any further samples of the goods be selected and tested, they shall, on his written application and on the payment in advance by him to the Court or officer of Customs, as the case may be, of such sums for defraying the cost of the further selection and testing as the Court or officer may from time to time require, be selected and tested to such extent as may be permitted by rules to be made by the Central Government in this behalf or as, in the case of goods with respect to which provision is not made in such rules, the Court or officer of Customs may determine in the circumstances to be reasonable, the samples being selected in manner prescribed under sub‑section (1), or in sub‑section (2), as the case may be.

(5) The average of the results of the testing referred to in sub‑section (3) and of the further testing under sub‑section (4) shall be conclusive proof of the number, quantity, measure, gauge or weight, as the case may be, of the goods.

(6) Rules under this section shall be made after previous publication.

21. Information as to commission of offence. An officer of the Government whose duty it is to take part in the enforcement of this Act shall not be compelled in any Court to say whence he got any information as to the com mission of any offence against this Act.

22. Punishment of abetment in Pakistan of Act done out of Pakistan. If any person, being within Pakistan, abets the com mission, without Pakistan, of any Act which, if committed in Pakistan, would, under this Act, or under any section of that part of Chapter XVIII of the Pakistan Penal Code which relates to trade, property and other marks, be an offence, he may be tried for such abetment in any place in Pakistan in which he may be found, and be punished therefore with the punishment to which he would be liable if he had himself committed in that place the act which he abetted.

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