Part of a Lecture delivered to the Society on the zznd November, •954 THE MERGHANDISE MARKS AGTS By R. L. LLOYD* LET ME start with a quotation which will indicate the opinion of those who come in contact with the subject of my talk tonight: "It is a most difficult Act to construe and has given rise to many appeals. Those responsible might well consider whether new legislation should not be introduced to set out the law on this matter in clear language, which lay justices and others concerned with its administration could understand." So said Lord Goddard in a case a few years ago, and I regret to say that since then nothing has been done to implement his suggestion. The Merchandise Marks Acts have been in existence for a long time-- 66 years---but to the general public they were completely unknown until the Parliamentary debates in 1953 brought them temporarily into the limelight. There are several of these Acts, the first dating from 1883, and the last, as you know, passed last year. You will first want to know what are Merchandise Marks. They can be broadly defined as any marks which are applied to, or used in association with, goods which are either possessed for the purpose of sale or manufacture, or are exposed for sale. This definition can therefore include not only descriptions or statements printed on the articles and their wrappers, but also leaflets, advertising matter, catalogues, showcards, trade lists. Laws concerned with the marking of goods are not new. The most noteworthy was passed in 1423 and concerned the marking of gold and silver articles, and since then several laws concerning other specific goods have been made. Nor does the series of Merchandise Marks Acts compose the whole law on the subject of marking, for there are numerous other enactments concerned with specialised aspects of the same subject, such as the Sale of Food Act, 1926, and the Pharmacy and Medicine Act, 1941, as well, of course, as the large body of Weights and Measures legislation. But I think you will find that there is enough to consider in our subject to-night without straying into these strange fields. The various Merchandise Marks Acts stretching from 1887 to 1953 with which we are dealing lay down certain offences against the criminal law, and these may be conveniently divided into offences committed by manu- facturers and those committed by traders. * Patents and Trade Marks Officer, Beecham Group Ltd. 212

THE MERCHANDISE MARKS ACT The main offences concerning manufacturers are: {1) Falsely applying to goods any trade mark, or mark so nearly resemb- ling a trade mark, as to be likely to deceive, and (2) Ap plying any false trade description to goods. You will notice that the offences are in applying, for which word the Act provides a very wide definition. In these cases the only defence open is to prove clearly and conclusively that the accused acted without dishonest intent, which implies not only a lack of intention to cheat, but also a lack of intention to apply a false trade description at all. The offences which are specially directed against dishonest or careless traders are really an extension and adaptation of the two manufacturers' offences which I have just mentioned. The basis of each offence is in selling or exposing for sale, or having in possession for sale, or any purpose of trade or manufacture, any goods to which. (a) Any false trade description is applied or (b) Any trade mark, or mark so nearly resembling one as to be likely to deceive, is falsely applied. A trader can adduce in his defence: {a) That he had taken all reasonable precautions against committing an offence, and had no reason to suspect the genuineness of the trade mark or trade description, and that he gave all the information in his power with respect to the persons from whom he obtained the goods or (b) That he otherwise acted innocently. If the trader has not applied the mark or description himself and has not been aware of it, and has also acted in an honest and innocent fashion, he will escape conviction. It will thus be seen that, very roughly speaking, manufacturers' offences consist in applying false trade marks or descriptions to goods, while the traders' offences lie in selling or possessing goods to which false trade marks or descriptions have been applied. I must explain that the expression "to apply a trade description" means to use the description on the goods themselves or on a label, wrapper or packing, or on accompanying matter, for example, leaflets, invoices or tickets, or in relation to the goods, for example, on showcards or advertisements. When a sale of goods takes place in a shop, a trade description on an invoice accompanying them is such an application but this is not so if the invoice is sent after the goods have been sold. The Act does not apply to a verbal statement as it cannot be said to be applied to goods. But if a verbal 2!3