JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS and they got a better sale because the public did not know that they were buying sprats and not sardines." If the description was not in use before 1887, it is no defence to say that it has come into general use since then. The most recent instance of this is once again the vinegar case. Here it was proved that since 1890 a synthetic substance, which was quite wholesome, had been known first as "wood vinegar," then as "table vinegar," and since 1937 as "non-brewed vinegar." The Court, however, held that since the substance was not in fact vinegar, the description "non-brewed vinegar" was a false trade description. It was immaterial that the term was commonly used by the trade and approved by the Ministry of Food, for it had not been in use before 1887. The instances of trade descriptions which I have given so far have generally been statements recognisable as relating to goods. There are, in addition, provisions dealing with statements which are not ostensibly trade descriptions at all or which, although true statements in themselves, could be mistaken by the public for a statement having an entirely different meaning. The provisions under this sub-section of the Act fall into two parts: First, any trade description is deemed to be a false trade description-- even if true on the face of it--if it is likely to be mistaken for a false trade description. This would probably apply to a trade description which, while perfectly true, is qualified by an addition in inconspicuous type, e.g., PORT in large letters, with the/vord "type" in very small letters beneath it. Or the word SILK on a garment in large letters, and beneath it the modest addition "and rayon mixture." Here the description is true if read as a whole, but is likely to be read as something which is false. Incidentally (and I do not want to complicate matters too much) some authorities think that the examples I have just given are instances of misleading trade descriptions, which, although not able to be attacked under the old Act, are caught by amendments in the 1953 Act. The second part of the subsection is a new extension of the Act, for it applies to things which are not in themselves trade descriptions at all. The provision can be paraphrased in this way: anything, even if not a trade description at all on the face of it, is deemed to be a trade description if it is likely to be mistaken for one. Some indication of the intentions of the legis- lature in drafting this clause came out in the Parliamentary debates. It was then suggested that the new provision would implicate the expression "full of fashion" on stockings this is not a trade description at all, but neverthe- less it is likely to be mistaken for one that is, namely, "fully fashioned." I have already mentioned another example: tt-_e dress marked "less than half the price you would normally pay for an all-wool dress." Here the implica- tion was that the garment was all-wool, whereas in fact it was a mixture. This clause will probably also catch get-up of a type which would be 222

THE MERCHANDISE MARKS ACT likely to be mistaken for a trade description, though this, in many cases, is probably already covered by other provisions of the Act. Such a get-up would be the picture on a cigar box, to which I have already referred. The Merchandise Marks Acts also deal to some extent with trade marks, although those which have been registered already have extensive protection against misuse under the Trade Marks Act, 1938, and even unregistered trade marks are given protection by the Common Law when actual deception or confusion is caused by imitations. In cases of this sort the owner of the trade mark has a more effective civil remedy than the criminal prosecution pro- vided by the Merchandise Marks Acts. The way in which the Merchandise Marks Acts touch upon trade marks deserves, however, a brief reference. The Act lays down that the fact that a trade description is also a registered trade mark does not prevent it from being a false or misleading trade description, and so it may be liable to prosecution. On the face of it it would therefore appear that the rights given to the owner of a registered trade mark by the Trade Marks Act, 1938, will not protect him if the mark is used in a descriptive sense which is false or misleading. The Merchandise Marks Acts, however, go on to provide that trade marks registered or in use on July 31, 1953, are not to be treated as false trade descriptions under the new provisions of the 1953 Act. The effect of this is that the user of an existing trade mark, whether registered or not, which did not offend against the previous Acts on July 31, 1953, but does offend the new provisions of the 1953 Act, is protected against prosecution. The only other provision affecting trade marks which I would mention is really the only section of the Act which is ever invoked for the protection of trade marks. As I mentioned very early in this talk, it is an offence to falsely apply to goods a trade mark or any mark so nearly resembling a trade mark as to be likely to deceive. The Act gives a very detailed and broad definition of the word "apply" and it includes the use of packing material already bearing a trade mark. The importance of the section lies therefore in its use to obtain convictions against persons who have used as containers for their own preparations bottles embossed with a trade mark which does not belong to them. Many of the reported cases have concerned the re-filling of beer bottles, but other preparations, including hair dressings, have also invoked this section of the Act. It is not, however, a satisfactory procedure to use, and the trade mark owner is better advised to seek a civil remedy for infringement of his trade mark and passing-off. I have spoken at some length about the marking of the goods themselves I now want to treat briefly of the effect of the provisions of the 1953 Act on advertisements. I am here treading on unknown ground with only a few rather bare indications in the Act to show the way. I should, however, emphasise that there are no special rules for advertisements, and that the 223