THE MERCHANDISE MARKS ACT description in it, he will be able, if he had taken certain reasonable precau- tions, to plead these facts in defence. Another part of the Act, which is not new, but has been in force since 1938, also deals with trade descriptions in advertisements, but in a somewhat different way. This section lays down that if goods are delivered in pursuance of a request made by reference to a trade mark or trade description appearing in any sign, advertisement, invoice, wine list, business letter, business paper or other commercial communication, then those goods shall be deemed to be goods in connection with which the trade mark or trade description is used. Before this clause can be invoked it must be proved that the description had been used in a manner likely to lead to the belief that the goods are described by the trade description. A simple illustration is the waiter who hands you a wine list, from which you order, say, a French wine, but get something which does not comply with the description in the list, such as an Algerian wine. Here is a false trade description, for you have been led to believe that the list described the wine you expected to get. An offence under this section would also arise when a suite of furniture advertised as made of walnut turns out to be composed of another wood with a walnut veneer. A more difficult position arises when a customer enters a chemist's shop brandishing an advertisement of a nationally advertised hair restorer, which is of course a trade description here it is probable, but not certain, that the chemist is guilty of an offence the manufacturer, of course, certainly will be guilty. There has been some discussion upon whether this provision will affect wireless and television advertising. There is a case for saying that if goods are delivered in pursuance of a request made by reference to an advertisement over this medium of advertising they will fall within the Act, even though, contrary to the general rule, the descriptions relating to the goods are purely oral. It will be for the Courts to decide whether this theory is correct. The position is rather confused, but it is quite clear that an offence will arise when goods are delivered in response to a request which specifically refers to the trade description in the advertisement, as happened in the Canadian cases I have mentioned. In the case of mail order advertisers, there is no doubt about the occa- sioning of the offence, not only because of the advertisement, but also both because of the application of a false trade description, and of the sale of goods to which a false trade description has been applied. Puffs in advertisements are unlikely to be affected by the Act. The phrases "best quality" or "beer is best" are really meaningless, there being no standard by which to compare the goods. So also are the equally mean- ingless phrases "X petrol gives more miles per gallon," "she turned to Y for the cleanest wash of all," "double active skin vitaliser." But care must be taken in the use of slogans they may not be misleading to an expert, but 225

JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS they may mislead an ordinary person, and then an offence will have been committed. I must mention that if an advertisement "guarantees" a pro- duct, it will be taken to mean what it says. A judge has described the word "guarantee" as "about as emphatic a word as one could imagine," so it is best to avoid using it in advertisements. It is impossible to say, until the Courts have given some rulings, where a legitimate trade puff ends and a misleading representation begins. Someone has questioned the term "skin food," in view of the fact that the skin cannot feed, and the same question arises about creams which claim to help the skin by applying vitamins to it. What about advertisements like-- "Be popular with men to-night or your money refunded." "This powder has been thoroughly tested by scientists and guaranteed to be definitely lectro-static (sic)." "You can't tell it from butter." You will have noticed that I have not given much attention to the aspect which most concerns this Society, the effect of the Acts on cosmetics. This is a very difficult question to deal with and it may be helpful if I refer again to conditions in Canada. In that country the Food and Drugs Act of 1953 has stringent regulations about the labelling and advertising of cosmetics, but the same standards are not applied to them as to food and drugs. As an eminent Canadian Queen's Counsel has remarked--"It is not felt that the public is actually deceived by the glamorous and exaggerated advertising which is ordinarily associated with cosmetics, and a cosmetic which does not at least promise to restore the appearance of youth, or perhaps to improve on nature, is the exception rather than the rule." It remains to be seen whether British Courts will come to share this realistic view. I have spoken at some length about offences under the Acts, and I cannot conclude without mentioning the actual penalities imposed on those found guilty. A prosecution in the first place is taken to the Police Court, but before trial the defendant can elect to be tried by jury. If the case is tried before a magistrate, the penalty can be imprisonment up to 4 months, or a fine up to t100, for a first offence, and for a subsequent offence the maximum penalty is f250 or imprisonment not exceeding six months. If the case is tried before a jury, the penalty is imprisonment not exceeding 2 years, or a fine, or both imprisonment and a fine may be imposed. Wherever the trial takes place, an appeal is always allowable to a higher Court. Well, that concludes my discussion of this Act, and I have necessarily had to omit a large number of subjects covered by it. But I think that I have dealt with the important ones which are likely to be of concern to members of this Society. It would seem that the latest Act of 1953 has put the final nail in the coffin of the old legal maxim "caveat emptor," let the buyer watch out for himself, and has substituted "caveat vendor," or the seller 226