MERCHANDISE MARKS

(1) Every person who –

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

(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-

be guilty of an offence against this Ordinance.

(3) Every person who imports any piece-goods ordinarily sold by length or by the piece, manufactured beyond the limits of Ceylon, or who sells or exposes for, or has in his possession for, sale, or any purpose of trade, any piece-goods ordinarily sold as aforesaid, whether manufactured within or beyond the limits of Ceylon, which have not conspicuously 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, shall be guilty of an offence against this Ordinance :

Provided always that nothing in this subsection contained shall apply to any piece-goods manufactured within the limits of Ceylon by hand labour only.

(4) Every person charged with an offence against this Ordinance may be tried by a District Court or a Magistrate’s Court, and shall be liable-

(5) 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.

(6) It shall be lawful for a Magistrate’s Court, in the case of a second or subsequent summary conviction to inflict the full amount of fine herein before provided, anything in section 15 of the Criminal Procedure Code to the contrary notwithstanding :

Provided that a person charged with an offence under this section before a Magistrate’s Court shall, on appearing before the court, and before the charge is gone into, be informed of his right to be tried by a District Court, and, if he requires, be so tried accordingly.

(1) For the purpose of this Ordinance –

” 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 Ordinance ;

” goods ” means anything which is the subject of trade, manufacture, or merchandise ;

” name ” includes any abbreviation of a name ;

“person”, “manufacturer, dealer, or trader”, and ” proprietor ” include any body of persons corporate or unincorporate ;

” trade description ” means any description, statement or other indication, direct or indirect —

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 Ordinance ;

” trade mark ” means a trade mark registered in the register of trade marks kept under the Trade Marks Ordinance, and includes any trade mark which is registered in the register of trade marks kept under the Trade Marks Act, 1905, and any trade mark which, either with or without registration, is protected by law in any British possession, or foreign state with respect to which Her Majesty by Order in Council shall have declared that the provisions of section 91 of the Patents and Designs Act, 1907, or the corresponding provisions of any enactment repealed by that Act are to be applicable.

(2) The provisions of this Ordinance 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) The provisions of this Ordinance 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 Ordinance the expression ” false name or initials ” means, as applied to any goods, any name or initials of a person which-

(4) 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.

(a) without the assent of the proprietor of the trade mark makes that trade mark, or a mark so nearly resembling that mark as to be calculated to deceive ; or

(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise,

(1) A person shall be deemed to apply a trade mark, or mark, or trade description to goods who-

(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, stamped, branded, or otherwise worked into or annexed, or affixed to the goods, or to any covering, label, reel, or other thing.

(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.

(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 Ceylon, 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 trade mark, mark, or trade description ; and

(d) that he gave to the prosecutor all the information in his power with respect to the person on whose behalf the trade mark, mark, or description was applied,

(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 ;

(2) in the case of imported goods evidence of the port of shipment shall be prima facie evidence of the place or country in which the goods were made or produced.

(1) Where, upon information of an offence against this Ordinance, a Magistrate has issued either a summons 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 Magistrate on or after issuing the summons or warrant, or any other Magistrate, 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 Magistrate may issue a warrant under his hand, by virtue of which it shall be lawful for any police officer, or other person named or referred to in the warrant, to enter such house, premises, or place at any reasonable time by day, and to search therefor and seize and take away those goods or things ; and any goods or things seized under any such warrant shall be brought before a Magistrate’s Court 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 thereof had been convicted, would be liable to forfeiture under this Ordinance, is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing such forfeiture, and a Magistrate’s Court may cause notice to be1 advertised stating that, unless cause is shown to the contrary at the time and place named in the notice, such goods or things will be forfeited, and at such time and place the court, unless the owner or any person on his behalf, or other person interested in the goods or things, shows sufficient cause to the contrary, may order such goods or things or any of them to be forfeited, and every such order shall be subject to appeal.

(3) Any goods or things forfeited under this section, or under any other provisions of this Ordinance, may be destroyed or otherwise disposed of in such manner as the court by which the same are forfeited may direct, and the court may, out of any proceeds which may be realized by the disposition of such goods (all trade marks and trade descriptions being first obliterated), award to any innocent party any loss he may have innocently sustained in dealing with such goods.

(1) All such goods, and also all goods made or produced beyond the limits of the United Kingdom and Ceylon, and having applied thereto any name or trade mark being, or purporting to be, or being a colourable imitation of, the name or trade mark of any manufacturer, dealer, or trader in the United Kingdom or Ceylon, unless such name or trade mark is accompanied by a definite indication, indicated in letters as large and conspicuous as any letter in the name or trade mark, of the place and country in which the goods were made or produced, and also all piece-goods such as are ordinarily sold by the length or by the piece, which have not conspicuously 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, are hereby prohibited to be imported into Ceylon, and, subject to the provisions of this section, shall be included among goods prohibited to be imported as if they were referred to in section 43 of the Customs Ordinance, and included in Schedule B to that 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, or other officer specially appointed in this behalf by the Minister,8 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 Principal Collector of Customs may from time to time, with the sanction of the Minister,1 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 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 or Ceylon, that name, unless accompanied in equally large and conspicuous letters 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 or Ceylon.

(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 Gazette.

(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.

(2) Nothing in this Ordinance shall entitle any person to refuse to make a complete discovery, or to answer any question or interrogatory in any action, but such discovery or answer shall not be admissible in evidence against such person in any prosecution for an offence against this Ordinance.

(3) Nothing in this Ordinance shall be construed so as to render liable to any prosecution or punishment any servant of a master resident in Ceylon who bona fide 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.