[Repealed by Act 43 of 1958, Section 136, w.e.f. 25-11-1959.]
Whereas it is expedient to amend the law relating to fraudulent marks on merchandise; It is hereby enacted as follows:
In this Act, unless there is something repugnant in the subject or context,
4[(1) mark has the meaning assigned to that expression in clause (f) of sub-section (1) of Section 2 of the Trade Marks Act, 1940 (5 of 1940):
(1-A) trade mark means a registered trade mark as defined in clause (j) of sub-section (1) of Section 2 of the Trade Marks Act, 1940, or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor or to use the mark:]
(2) 5 trade description means any description, statement or other indication, direct or indirect,
(a) as to the number, quantity, measure, gauge or weight of any goods, or
(b) as to the place or country in which, or the time at which, any goods were made or produced, or
(c) as to the mode of manufacturing or producing any goods, or
(d) as to the material of which any goods are composed, or
(e) as to any goods being the subject of an existing patent, privilege or copyright;
and the use of any 6[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 description within the meaning of this Act:
(3) 7 false trade description means a trade description which is untrue in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement or otherwise, where that alteration makes the description untrue in a material respect, and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description being a false trade description within the meaning of this Act:
(4) goods means anything which is the subject of trade or manufacture: and
(5) name includes any abbreviation of a name.
8[* * *]
Amendment of the Indian Penal Code
[Repealed by the Repealing Act, 1938 (1 of 1938), Section 2 and Schedule.]
Trade Descriptions
9(1) The provisions of this Act respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, shall extend to the application to goods of any such 10[marks], or arrangement or combination thereof, whether including a trade mark or not, as are or is reasonably calculated to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are, and to goods having such 11[marks], or arrangement or combination, applied thereto.
12(2) The provisions of this Act respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, shall extend to the application to goods of any false name or initials of a person, and to goods with the false name or initials of a person applied, in like manner as if such name or initials were a trade description, and for the purpose of this enactment the expression false name or initials means as applied to any goods any name or initials
(a) not being a trade mark, or part of a trade mark, and
(b) being identical with, or a colourable imitation of, the name or initials of a person carrying on business in connection with goods of the same description and not having authorized the use of such name or initials, 13[and
(c) being the name or initials of a fictitious person or of a person not carrying on business in connection with goods of the same description.]
(3) A trade description which denotes or implies that there are contained in any goods to which it is applied more yards, feet or inches than there are contained therein standard yards, standard feet or standard inches is a false trade description.
145. Application of trade descriptions. (1) A person shall be deemed to apply a trade description to goods who
(a) applies it to the goods themselves, or
(b) applies it to any covering, label, reel or other thing in or with which the goods are sold or are exposed or had in possession for sale or any purpose of trade or manufacture, or
(c) places, encloses or annexes any goods which are sold, or are exposed or had in possession for sale or any purpose of trade or manufacture, in, with or to any covering, label, reel or other thing to which a trade description has been applied, or
(d) uses a trade description in any manner reasonably calculated to lead to the belief that the goods in connection with which it is used are designated or described by that trade description.
(2) A trade description shall be deemed to be applied whether it is woven, impressed or otherwise worked into or annexed or affixed to the goods or any covering, label, reel or other thing.
(3) The expression covering includes any stopper, cask, bottle, vessel, box, cover, capsule, case, frame or wrapper, and the expression label includes any band or ticket.
156. Penalty for applying a false trade description. If a person applies a false trade description to goods, he shall, subject to the provisions of this Act, and unless he proves that he acted without intent to defraud, be punished with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, and in the case of a second or subsequent conviction with imprisonment which may extend to one year, or with fine, or with both.
7. Penalty for selling goods to which a false trade description is applied. If a person sells, or exposes or has in possession for sale or any purpose of trade or manufacture, any goods or things to which a false trade description is applied, 16[or which, being required by notification under Section 12-A to have applied to them an indication of the country or place in which they were made or produced, are without the indication required by such notification] he shall, unless he proves
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade description 17[or that any offence against this section had been committed in respect of the goods], 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, or
(c) that otherwise, he had acted innocently,
be punished with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, and in case of a second or subsequent conviction with imprisonment which may extend to one year, or with fine, or with both.
18[7-A. Penalty for tampering with, altering or effacing a mark applied in pursuance of Section 12-A. If a person tampers with, alters or effaces a mark which has been applied to any goods to which it is required to be applied by notification made under Section 12-A, he shall, unless he proves that he acted without intent to defraud, be punished with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, and, in the case of a second or subsequent conviction, with imprisonment which may extend to two years, or with fine, or with both.]
Unintentional Contravention of the Law relating to Marks and Descriptions
198. Unintentional contravention of the law relating to marks and descriptions. Where a person is accused under Section 482 of the Indian Penal Code (45 of 1860.) of using a false trade mark or property mark by reason of his having applied a mark to any goods, property or receptacle in the manner mentioned in Section 480 or Section 481 of that Code, as the case may be, or under Section 6 of this Act of applying to goods any false trade description, or under Section 485 of the Indian Penal Code of making any die, plate or other instrument for the purpose of counterfeiting a trade mark or property mark, and proves
(a) that in the ordinary course of his business he is employed, on behalf of other persons, to apply trade marks or property marks, or trade descriptions, or, as the case may be, to make dies, plates or other instruments for making, or being used in making, trade marks or property marks, and that in the case which is the subject of the charge he was so employed and was not interested in the goods or other thing by way of profit or commission dependent on the sale thereof, and
(b) that he took reasonable precautions against committing the offence charged, and
(c) that he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the mark or description, and
(d) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons on whose behalf the mark or description was applied,
he shall be acquitted.
Forfeiture of Goods
209. Forfeiture of goods. (1) When a person is convicted under Section 482 of the Indian Penal Code (45 of 1860) of using a false trade mark, or under Section 486 of that Code of selling, or exposing or having in possession for sale or any purpose of trade mark applied thereto, or under Section 487 or Section 488 of that Code of making, or making use of, a false mark, or under Section 6 or Section 7 of this Act of applying a false trade description to goods or of selling, or exposing or having in possession for sale or any purpose of trade or manufacture, any goods or things to which a false trade description is applied 21[or which, being required by notification under Section 12-A to have applied to them an indication of the country or place in which they were made or produced, are without the indication required by such notification], or is acquitted on proof of the matter or matters specified in Section 486 of the Indian Penal Code or Section 7 or Section 8 of this Act, the Court convicting or acquitting him may direct the forfeiture to Government of all goods and things by means of, or in relation to, which the offence has been committed or, but for such proof as aforesaid, would have been committed.
(2) When a forfeiture is directed on a conviction and an appeal lies against the conviction, an appeal shall lie against the forfeiture also.
(3) When a forfeiture is directed on an acquittal and the goods or things to which the direction relates are of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from the date of the direction, to the Court to which in appealable cases appeals lie from sentences of the Court which directed the forfeiture.
Amendment of the Sea Customs Act, 1878
10. Amendment of the Sea Customs Act, 1878. [Repealed by the Repealing Act, 1938, (1 of 1938), Section 2 and Schedule.]
11. Amendment of the Sea Customs Act, 1878. [Repealed by the Repealing Act, 1938, (1 of 1938), Section 2 and Schedule.]
22[Stamping of Piece-goods, Cotton yarn and Thread
12. Stamping of piece-goods, cotton yarn and thread. (1) Piece-goods, such as ordinarily sold by length or by the piece, which have been manufactured, bleached, dyed, printed or finished in premises which are factory, as defined in the 23Factories Act, 1934 (25 of 1934), shall not be removed for sale from the last of such premises in which they underwent any of the said processes without having conspicuously stamped in English numerals on each piece the length thereof in standard yards, or in standard yards and a fraction of such a yard, according to the real length of the piece, and, except when the goods are sold from the factory for export from 24[India], without being conspicuously marked on each piece with the name of the manufacturer, or of the occupier of the premises in which the piece was finally processed or of the wholesale purchaser in India of the piece.
(2) Cotton yarn such as is ordinarily sold in bundles, and cotton thread namely sewing, darning, crochet or handicraft thread, which have been manufactured, bleached, dyed, or finished in any premises not exempted by rules made under Section 20 of this Act, shall not be removed for sale from those premises unless, in accordance with the said rules in the case of yarn the bundles are conspicuously marked with an indication of the weight of yarn in each bundle and the count of the yarn contained in the bundle and in the case of thread each unit is conspicuously marked with the length or weight of thread in the unit and in such other manner as may be required by the said rules and, except where the goods are sold from the premises for export from 25[India], unless each bundle or unit is conspicuously marked with the name of the manufacturer or of the wholesale purchaser in India of the goods:
Provided that the rules made under Section 20 shall exempt all premises where the work is done by the members of one family with or without the assistance of not more than ten other employees, and all premises controlled by a co-operative society where not more than twenty workers are employed in the premises.
(3) If any person removes or attempts to remove or causes or attempts to cause to be removed for sale from such premises or sells or exposes or has in possession for sale any such piece-goods or any such cotton yarn or any such thread which is not marked as required by sub-section (1) and sub-section (2), every such piece and every such bundle of yarn and all such thread, and everything used for the packing thereof, shall be forfeited to Government and such person shall be punished with fine which may extend to one thousand rupees.]
26[Power to require goods to show indication of origin
12-A. Power to require goods to show indication of origin. (1) The Central Government may, by notification in the Office Gazette, require that goods of any class specified in the notification which are made or produced beyond the limits of 27[India] and imported into 28[India], or which are made or produced within the limits of 29[India], shall, from such date as may be appointed by the notification not being less than three months from its issue, have applied to them an indication of the country or place in which they were made or produced.
(2) The notification may specify the manner in which such indication shall be applied, that is to say whether to the goods themselves or in any other manner, and the times or occasions on which the presence of the indication shall be necessary, that is to say whether on importation only, or also at the time of sale, whether by wholesale or retail or both.
(3) No notification under this section shall be issued, unless application is made for its issue by persons or associations substantially representing the interests of dealers in or manufacturers, producers, or users of the goods concerned, or unless the Central Government is otherwise convinced that it is necessary in the public interest to issue the notification, nor without such inquiry as the Central Government may consider necessary.
(4) The provisions of Section 23 of the General Clauses Act, 1897, (10 of 1897), shall apply to the issue of a notification under this section as they apply to the making of a rule or bye-law the making of which is subject to the condition of previous publication.
(5) A notification under this section shall not apply to goods made or produced beyond the limits of 30[India] and imported into 31[India] if in respect of those goods the Chief Customs Officer is satisfied at the time of importation that they are intended for exportation whether after transhipment in or transit through 32[India] or otherwise].
Supplemental Provisions
3313. Evidence of origin of goods imported by sea. In the case of goods brought into 34[India] by sea, evidence of the port of shipment shall, in a prosecution for an offence against this Act or Section 18 of the Sea Customs Act, 1878 (8 of 1878), as amended by this Act, be prima facie evidence of the place or country in which the goods were made or produced.
3514. Costs of defence or prosecution. (1) On any such prosecution as is mentioned in the last foregoing section or on any prosecution for an offence against any of the sections of the Indian Penal Code (45 of 1860.), as amended by this Act, which relate to trade, property and other marks, the Court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.
(2) Such costs shall, on application to the Court, be recoverable as if they were a fine.
3615. Limitation of prosecution. No such prosecution as is mentioned in the last foregoing section shall be commenced after the expiration of three years next after the commission of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens.
16. Authority of the Central Government to issue instructions as to administration of this Act. (1) The Central Government may, by notification 37[in the Official Gazette], issue 38instructions for observance by Criminal Courts in giving effect to any of the provisions of this Act.
(2) Instructions under sub-section (1) may provide, among other matters, for the limits of variation, as regards number, quantity, measure, gauge or weight, which are to be recognized by Criminal Courts as permissible in the case of any goods.
3917. Implied warranty on sale of marked goods. On the sale or in the contract for the sale of any goods to which a trade mark or mark or trade description has been applied, the seller shall be deemed to warrant that the mark is a genuine mark and not counterfeit or falsely used, or that the trade description is not a false trade description within the meaning of this Act, unless the contrary is expressed in some writing signed by or on behalf of the seller and delivered at the time of the sale or contract to and accepted by the buyer.
4018. Savings. (1) Nothing in this Act shall exempt any person from any suit or other proceeding which might, but for anything in this Act, be brought against him.
(2) Nothing in this Act shall entitle any person to refuse to make a complete discovery or to answer any question or interrogatory in any suit or other proceeding, but such discovery or answer shall not be admissible in evidence against such person in any such prosecution as is mentioned in Section 14.
(3) Nothing in this Act shall be construed so as to render liable to any prosecution or punishment any servant of a master resident in 41[India] who in good faith acts in obedience to the instructions of such master, and, on demand made by or on behalf of the prosecutor, has given full information as to his master and as to the instructions which he has received from his master.
42[* * *]
43[19. Definition of piece-goods. For the purposes of Section 12 of this Act and clause (f) of Section 18 of the Sea Customs Act, 1878 (8 of 1878), as amended by this Act, the Central Government may, by notification in the Official Gazette 44declare what classes of goods are included in the expression piece-goods, such as are ordinarily sold by length or by the piece .
20. Determination of character of goods by sampling. (1) The Central Government may make 45rules, for the purposes of this Act, to provide, with respect to any goods which purport or are alleged to be uniform number, quantity, measure, gauge or weight, for the number of samples to be selected and tested and for the selection of the samples.
46[(1-A) The Central Government may make rules providing for the manner in which for the purposes of Section 12 cotton yarn and cotton thread shall be marked with the particulars required by that section, and for the exemption of certain premises used for the manufacture, bleaching, dyeing or finishing of cotton yarn or cotton thread from the provisions of that section.]
(2) With respect to any goods for the selection and testing of samples of which provision is not made in any rules for the time being in force under sub-section (1), the Court or officer of Customs, as the case may be, having occasion to ascertain the number quantity, measure, gauge or weight of the goods shall, by order in writing, determine the number of samples to be selected and tested and the manner in which the samples are to be selected.
(3) The average of the results of the testing in pursuance of rules under sub-section (1) or of an order under sub-section (2) shall be prima facie evidence of the number, quantity, measure, gauge or weight, as the case may be, of the goods.
(4) If a person having any claim to, or in relation to, any goods of which samples have been selected and tested in pursuance of rules under sub-section (1) or of an order under sub-section (2), desires that any further samples of the goods be selected and tested, they shall, on his written application and on the payment in advance by him to the Court or officer of Customs, as the case may be, of such sums for defraying the cost of the further selection and testing as the Court or officer may from time to time require, be selected and tested to such extent as may be permitted by rules to be made by the Central Government in this behalf or as, in the case of goods with respect to which provision is not made in such rules, the Court or officer of Customs may determine in the circumstances to be reasonable, the samples being selected in manner prescribed under sub-section (1), or in sub-section (2), as the case may be.
(5) The average of the results of the testing referred to sub-section (3) and of the further testing under sub-section (4) shall be conclusive proof of the number, quantity, measure, gauge or weight, as the case may be, of the goods.
(6) Rules under this section shall be made after previous publication.
21. Information as to commission of offences. An officer of the Government whose duty it is to take part in the enforcement of this Act shall not be compelled in any Court to say whence he got any information as to the commission of any offence against this Act.
22. Punishment of abetment in India of acts done out of India. If any person, being within 47[India], abets the commission, without 48[India] of any act which, if committed in 49[India], would, under this Act, or under any section of that part of Chapter XVIII of the Indian Penal Code (45 of 1860) which relates to trade, property and other marks, be an offence, he may be tried for such abetment in any place in 50[India] in which he may found, and be punished therefor with the punishment to which he would be liable if he had himself committed in that place the act which he abetted.]
1. This Act has been applied to (1) the Santal Parganas by the Santal Parganas (Second) Laws Regulation, 1941 (Bihar Regulation 3 of 1941); (2) the Sadiya, Balipara and Lakhimpur Frontier tracts with modifications by the Assam Excluded Areas (Merchandise Marks) Regulation, 1942 (Assam Regulation 2 of 1942); (3) Berar by the Berar Laws Regulation, 1941 (4 of 1941).
2. The words except the State of Jammu and Kashmir which have been substituted by Act 3 of 1951, Section 3 and Schedule, for except Part B States omitted by Act 62 of 1956, Section 2 and Schedule.
3. The words subject to the provision of the last section of this Act repealed by Act 9 of 1891, Section 1.
4. Substituted by Act 2 of 1941, Section 2, for the original definition of trade mark (w.e.f. 1-11-1948).
5. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 3(1).
6. Substituted by Act 2 of 1941, Section 2, for numeral, word or mark (w.e.f. 1-11-1948).
7. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 3(1).
8. Clause (6) defining India which had been substituted by Act 3 of 1951, Section 3 and Schedule, for the definition of States added by the A.O. 1950, omitted by Act 62 of 1956, Section 2 and Schedule.
9. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 3(2).
10. Substituted by Act 2 of 1941, Section 3 for numerals, words or marks (w.e.f. 1-11-1948).
11. Substituted by Act 2 of 1941, Section 3 for numerals, words or marks (w.e.f. 1-11-1948).
12. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 3(3).
13. Inserted by Act 2 of 1941, Section 3 (w.e.f. 1-11-1948).
14. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 5.
15. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 2(1).
16. Inserted by Act 2 of 1941, Section 4 (w.e.f. 1-11-1948).
17. Inserted by Act 2 of 1941, Section 4 (w.e.f. 1-11-1948).
18. Inserted by Act 2 of 1941, Section 5 (w.e.f. 1-11-1948).
19. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 6.
20. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 2(3)(iii).
21. Inserted by Act 2 of 1941, Section 6 (w.e.f. 1-11-1948).
22. Substituted by Act 2 of 1941, Section 7, as amended by Act 5 of 1945, Section 2, for the original heading and section (w.e.f. 1-11-1948).
23. See now the Factories Act, 1948 (63 of 1948).
24. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
25. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
26. Inserted by Act 2 of 1941, Section 8 (w.e.f. 1-11-1948).
27. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
28. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
29. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
30. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
31. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
32. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
33. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 10(2).
34. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
35. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 14.
36. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 15.
37. Substituted by the A.O. 1937 for in the Gazette of India and in local official Gazettes .
38. For notification containing such instructions, see Gazette of India, 1891, Part I, p. 626; 1941, Part I, p. 1255; 1954, Part I, Section 1, p. 195.
39. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 17.
40. Cf. the Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), Section 19.
41. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
42. The heading Transitory Provision and the original Section 19, repealed by Act 9 of 1891, Section 2.
43. Added by Act 9 of 1891, Section 4.
44. For rules made under this section, see Gazette of India, 1891, Part I, p. 187, and 1898, Part I, p. 714.
45. For rules made under this section, see Gazette of India, 1891, Part I, p. 187, and 1898. Part I, p. 714.
46. Inserted by Act 2 of 1941, Section 9 as amended by Act 5 of 1945, Section 3 (w.e.f. 1-11-1948).
47. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
48. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
49. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.
50. The words British India successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, Section 3 and Schedule to read as above.