"The words 'intent to defraud' in this Act mean more than an intent to cheat a customer." They apply to cases "where a person uses a particular mark without any intent in so doing to induce a buyer to accept goods which might otherwise be rejected (f). And in a case where the offence consisted in English manufacturers placing their name on goods manufactured by other persons, but equal in quality to their own (t), Coleridge, L.C.J., said: "In the present case all further controversy is superfluous when once one has ascertained with certainty what fraud means in the Act. I agree that if the word is used in the sense of putting off a bad article on a customer in order to get money unfairly, there is no evidence here of anything of the kind having been done. On the contrary, it is expressly found that the article supplied was as good as that contracted for. But that, I think, is not the correct meaning of the word fraud as used in this Act of Parliament. The Act is directed against the abuse of trade-marks, and the putting off on a purchaser of not a bad article, but an article different from that which he intended to purchase and believes he is purchasing. It would apply to cases where a particular article, manufactured by a particular person, had acquired a wide-spread reputation (as, for instance, happened in the celebrated case of the fish sauces (u)), and some one supplied another and a different article under that name, so as to make the purchaser take something which he did not know he was taking." On the other hand, the Act does not apply to mere cases of inaccurate or mistaken descriptions. The charges under it are criminal charges, and, according to the ordinary rule, a criminal intent—a mens rea in the person charged-must be made out (v). (t) Per Mathew, J., in Starey v. Chilworth Gunpowder Co., 24 Q. B. D. 90 (1889). (u) Burgess v. Burgess, 3 De G. M. & G. 896; 22 L. J. Ch. 675, cited p. 423. (v) Gridley v. Swinborne, 52 J. P. 739, 791; 5 T. L. R. 71 (1888), Coleridge, L.C.J., and Grantham, J.; Budd v. Lucas, (1891) 1 Q. B. 408. information. Reasonable precautions.-Giving information.]-Where Giving special defences are provided by the Act, in sect. 2 (2) (a) and (b) (x), and sect. 6 (y), the matters to be proved by the person charged include, that he took all reasonable precautions against committing an offence against the Act, and that he gave all the information in his power (z) with respect to the persons from whom he obtained the marked goods, or the person on whose behalf the mark or description in question was applied. No doubt it was intended by the draughtsmen of the Act to make these matters tests of innocent conduct on all charges under the Act, but it is submitted that the provisions respecting them cannot be imported into sections, as the above section, where they are not expressed. If this is so, the most ordinary evidence to show that the party charged acted without intent to defraud, or "otherwise innocently" (a), will be evidence of ignorance of the facts on which the charge is based for instance, evidence that he did not know or suspect that the mark forged was a trade-mark; that the goods to which the trade description was applied were not the goods described; or evidence that he believed he had the assent or authority of the proprietor of the trade-mark in question to apply it. Evidence of the defendant.]—By sect. 10 (1) (in any Evidence of prosecution for an offence against this Act) – "A defendant, and his wife, or her husband, as the case may be, may, if the defendant thinks fit, be called as a witness, and, if called, shall be sworn and examined, and may be cross-examined and re-examined in like manner as any other witness." Rebutting evidence.]-If the person charged gives, or calls evidence to show that he acted without intent to defraud, the prosecutor may give rebutting evidence, and, in particular, evidence of transactions similar to the offence (x) Below, p. 511. (y) Above, p. 501. (z) See also sect. 19 (3), above, p. 504. (a) Sect. 2 (2) (c), infra, p. 511. the defendant and his wife. Cases where possession or sale is an offence prima facie. charged, in which the person charged was concerned, and antecedent (but, it is said, not subsequent (b)) to that offence (c). 6. Sale or Possession of Falsely-Marked Goods. Sub-sect. 2 (2) provides that "Every person (d) who sells, or exposes for, or has in his possession for, sale, or any purpose of trade or manufacture, any goods or things to which any forged trade-mark (e) or false trade description (f) is applied (g), or to which any trade-mark or mark so nearly resembling a trade-mark as to be calculated to deceive is falsely applied (), as the case may be, shall" (unless he establishes one of specified defences (i)) "be guilty of an offence against this Act." Some other cases where possession is made an offence primâ facie, are collected at p. 506. Imitating the mark of the Birmingham Proof House for gun barrels, or knowingly selling any barrel bearing an imitation of such mark (); marking the mark of a hammer on cutlery not made of hammered steel, or having in possession for the purposes of sale articles so marked; marking cutlery, or having in possession for sale cutlery marked, with a false indication of quality, or with the words London or London made, unless the cutlery were manufactured in the city of London (1), or within twenty miles thereof, are misde meanours. By the Margarine Act, 1887 (m), s. 6, it is provided that (b) R. v. Holt, 30 L. J. M. C. 11. (c) Budd v. Lucas, (1891) 1 Q. B. 408, Pollock, B., and Charles, J. Evidence of previous short deliveries. R. v. Francis, L. R. 2 C. C. R. 128, a case of false pretences. See Archbold, 21st ed. p. 251. (d) Page 463. (e) Pages 465, 468. (ƒ) Pages 476, 487. (i) See next page.. (1) 59 Geo. 3, c. 7. See a paper by Mr. J. T. Smith, M. M. A. Report, 1862, p. 162. (m) 50 & 51 Vict. c. 29. every package, whether open or closed, and containing margarine, shall be branded or marked in a certain way, and that "if such margarine be exposed for sale, by retail, there shall be attached to each parcel thereof so exposed, and in such manner as to be clearly visible to the purchaser " a specified label. It has been held that a parcel of margarine placed behind a screen out of the sight of purchasers in a shop, and from which portions were cut for sale to them, is not (n), but that parcels done up in wrappers and placed in the shop so that the wrappers, but not the margarine itself, could be seen by purchasers, are, "exposed for sale" within the meaning of this section (o). 7. Defences under Sect. 2 (2). Sub-sect. (2) declares the person charged, if he falls within the earlier part of the sub-section, to be guilty of an offence against the Act "Unless he proves "(a) That having taken all reasonable precautions against committing an offence against this Act, he had at the time of the commission of the alleged offence no reason to suspect the genuineness (p) of the trade-mark, mark, or trade description; and (b) That on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things (9); or "(c) That otherwise he had acted innocently." The onus of establishing the innocence of any person charged, whose case is shown to fall within the earlier part of the section, is, therefore, as under the corresponding (n) Crane v. Laurence, 25 Q. B. D. 152 (1890), Cave and Smith, JJ. (0) Wheat v. Brown, (1892) 1 Q. B. 418, Lawrance and Wright, JJ. (p) Page 509. Cf. sect. 6 (c), p. 502, and sect. 17, p. 431, and also "false,"p. 488. (2) Pages 504, 509, and 512. Provision for disclosure in 1862. sub-sect. (1) (s), already considered, cast upon the person charged. The special defences (a) and (b) correspond to (b), (c), and (d) of sect. 6 (t), except that the information here referred to is to be given on demand, and in sect. 6 there is a special provision as to costs, which does not occur here. Rebutting evidence may be given by the prosecution to displace these defences (u). Gave all the information.]—In the evidence given before the Committees of 1862 and 1887, great stress was laid upon the importance of compelling retail traders and others found in possession of spurious goods, or found offering them for sale, to give such information as should lead to the discovery of the real, or the original, offenders. For frauds by false marking can usually only be detected when the goods are offered to the general public, and the goods are then in the hands of persons who are, or may be, or may speciously pretend to be, innocent of the frauds. Mr. Hindmarch, Q.C., the draughtsman of the Act of 1862, described the provisions for disclosure as of the essence of the bill upon which the Act was founded (x). By sect. 6 of the last-mentioned Act (y), a person who the M. M. A., sold, &c. any article together with a forged trade-mark, &c., was bound, upon demand in writing, by or on behalf of the persons whose trade-mark was forged, &c., and within twenty-four hours after the demand, to give full information in writing of the name and address of the person from whom, and the time when, he obtained the article. And any justice of the peace might order such information to be given. Refusal or neglect to comply with the order was punishable by a penalty of 57., and was primâ facie evidence of guilty knowledge at the time when he sold the article, on the part of the person refusing or neglecting. (s) Page 505. (t) Page 502. (u) Page 509. (x) M. M. A. Report, 1862, Q. 2865. (y) 25 & 26 Vict. c. 88. The section is much abbreviated. |