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

JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS statement is supported either before or after sale by a false declaration in some written form (say an invoice), then the two together may constitute an offence. A customer asked for New Zealand meat and, at his request, the butcher wrote "NM" on the invoice. These letters were meaningless, and not used in that trade, but he explained verbally to the customer that they meant "New Zealand." This was held to be a false trade description. Of course, if goods are not offered for sale at all, any amount of false representations may be made about them with impunity. The Acts give a detailed definition of a trade description it can be summarised as any description, statement or other indication direct or indirect relating to the number or quantity, or standard of quality, or fitness, or place of, or mode of manufacture, or material composition of goods. I shall presently consider this definition in more detail. The definition also states that "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 descrip- tion within the meaning of this Act." This addition means that it is not essential that words alone should be used to describe the goods in order to create an offence. A false trade description is separately defined by the Act as "a trade description which is false or misleading in a material respect as regards the goods to which it is applied, and includes every alteration of a trade descrip- tion, whether by way of addition, eftacement or otherwise, where that altera- tion makes the description false or misleading in a material respect." In this definition the word "misleading" (which was first introduced by the 1953 Act) means simply "likely to be misunderstood, or mistaken." The distinc- tion between "false" and "misleading" can be illustrated by examples: To describe wool mixture socks as "pure wool" is false. To use the words "less than half the price you would normally pay for an all-wool dress" on a cotton and wool mixture dress is misleading. When during this paper I use the word "false" it can be taken to include "misleading." I should also point out that the expression "in a material respect" means that the misdescription, etc. must be to a substantial or relevant degree. The 1953 Act introduced another very important new provision, which for the sake of clarity I will divide into two: (1) that anything likely to be mistaken for a trade description shall be treated as if it is a trade description and (2) that if it is likely to be mistaken for a trade description it shall be treated as one even if it is not a trade description at all. This sounds Irish but if you will recall the second example which I have just given of the wool mixture dress you will see what I mean. 214