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

JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS same rules apply as for goods in general. Great care should, however, be taken in the writing of advertising copy, as if it contains a false description the Acts may apply to it, although there has so far been no decision on how far a trade description used in an advertisement can be said to be applied to goods. Section 5 of the 1953 Act merely states that a description shall be deemed to be a trade description applied to goods if it is used in any manner likely to lead to the belief that the goods in connection with which it is used are designated or described by that trade mark or trade description. In other words, this means that a statement used in relation to goods is deemed to be a trade description if it designates or describes those goods. To get some idea of the effect of this clause we can look to Canada, where such a provision has been in force for some time. The owners of a Toronto department store inserted an advertisement which stated that on Saturday they would sell for six dollars "tea sets, 4 pieces, quadruple plate, handsomely engraved, regular price twelve dollars a set." A customer, having first asked if a set was one of those advertised as "quadruple plate" and being assured by the saleswoman that it was, and that he could rely on the adver- tisement, bought one of these tea sets. The set was not in fact quadruple plate, and the defendants were charged with possessing goods to which a false trade description was applied. The Court decided that as, in previous cases, invoices accompanying goods had been held to be within the Act, the advertisement was also within the Act, as the description in this case was used in a manner likely to lead people to think that the goods mentioned were described by it. In another Canadian case the defendants, in a newspaper advertisement, stated that they had "BVD" underwear for sale. "BVD" was a registered trade mark. In fact they had no underwear of the "BVD" brand, and were accordingly convicted on the ground that the advertisement was intended to refer to goods which were not "BVD," and so it was a false application of the trade mark. If our Act is applied in a similar way to that in Canada, it would therefore seem that the manufacturer of branded goods who inserts a trade description in an advertisement will be deemed to have applied the description to the goods, and will accordingly be liable under the Acts if it is false. It is a more complicated question to decide whether a trader who sells these goods, although he had no part in the advertisement, is also guilty of selling goods "to which a false trade description is applied." As the object of the Act is to prevent goods from being sold in such circumstances, it would appear that the trader would be guilty of this offence. This is not necessarily hard on the trader, for if he is ignorant of the issue of the adver- tisement he can plead in defence that he acted innocently, while if he knew of the advertisement, but had no reason to suspect the genuineness of the 224