Merchandise Marks
(Jersey) Law 1958[1]
A LAW to prevent the application to
merchandise of fraudulent marks and to require an indication of origin to be
given in the case of certain imported goods
Commencement
[see endnotes]
PART 1
INTRODUCTORY
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“false trade description” means a trade description
which is false or misleading 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 false or misleading 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 Law;
“foreign country” does not include the Republic of Ireland;
“forged trade mark” has the
meaning assigned thereto by Article 2;
“goods” means anything which is the subject of trade,
manufacture or merchandise;
“name” includes any abbreviation of a name;
“person”, “manufacturer”, “dealer or
trader” and “proprietor” include any body of persons
corporate or unincorporate;
“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;
(b) as to
the standard of quality of any goods, according to a classification commonly
used or recognized in the trade;
(c) as to
the fitness for purpose, strength, performance or behaviour of any goods;
(d) as to
the place or country in which any goods were made or produced;
(e) as to
the mode of manufacturing or producing any goods;
(f) as
to the material of which any goods are composed; or
(g) as to
any goods being the subject of an existing patent, privilege
or copyright,
and the use of any figure, word or 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 Law;
“trade mark” means –
(a) a
registered trade mark, Community trade mark or
protected international trade mark; or
(b) a trade mark registered under the Trade Marks Act of the United
Kingdom.[2]
(2) Words and phrases used
in this Law shall, unless the context otherwise requires, have the same
respective meanings as in the Trade Marks (Jersey)
Law 2000.[3]
(3) Without prejudice to
the generality of the definitions of “trade description” and
“false trade description” in paragraph (1), a trade
description shall be deemed, for the purposes of this Law, to be a false trade
description if, even though a true trade description, it is calculated to be
misunderstood as, or mistaken for, a false trade description, and anything
calculated to be misunderstood as, or mistaken for, an indication of any of the
matters mentioned in the definition of “trade description” shall be
deemed for these purposes to be a trade description.
(4) The provisions of this Law
respecting the application of a false trade description to goods shall extend
to the application to goods of any such figures, words or marks, or arrangement
or combination thereof, whether including a trade mark
or not, as are 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.
(5) The provisions of this Law
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 paragraph
the expression “false name or initials” means, as applied to any
goods, any name or initials of a person which –
(a) are
not a trade mark, or part of a trade mark;
(b) are
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; and
(c) are
either those of a fictitious person or of some person not bona
fide carrying on business in connection with
such goods.
(6) In relation to the
classes of goods which under Article 13, are prohibited to be imported
into Jersey as having a false trade description applied to them, this Article
shall have effect as if there were omitted therefrom –
(a) the
words “or misleading” in both places where they occur in the
definition of “false trade description” in paragraph (1) thereof;
(b) sub-paragraphs (b)
and (c) of the definition of “trade description” in paragraph (1)
thereof; and
(c) paragraph (2)
thereof.
2 Forging
trade mark
For the purposes of this Law, a person shall be deemed to forge a trade mark who either –
(a) without the assent of
the proprietor of the trade mark makes that trade mark
or a mark so nearly resembling that trade mark as to be calculated to deceive;
or
(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or
otherwise,
and any trade mark or mark so made or
falsified is in this Law referred to as a forged trade mark:
Provided that in any prosecution for forging a trade
mark the burden of proving the assent of the proprietor shall lie on the
defendant.
3 Applying
marks and descriptions
(1) For the purposes of
this Law, a person shall be deemed to apply a trade mark
or mark or trade description to goods who –
(a) applies
it to the goods themselves;
(b) applies
it to any covering, label, reel or other thing in or with which the goods are
sold or exposed or had in possession for any purpose of sale, trade or manufacture;
(c) places,
encloses or annexes any goods which are sold or exposed or had in possession
for any purpose of sale, trade or manufacture, in, with or to any covering,
label, reel or other thing to which a trade mark or
trade description has been applied; or
(d) uses
a trade mark or mark or trade description in any
manner calculated to lead to the belief that the goods in connection with which
it is used are designated or described by that trade mark or mark or trade
description.
(2) In paragraph (1),
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.
(3) For the purposes of
this Law, a trade mark or mark or 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 to any covering, label,
reel or other thing.
(4) Goods 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 shall, for
the purposes of paragraph (1)(d), be deemed to be goods in connection with
which the trade mark or trade description is used.
(5) For the purposes of
this Law, a person shall be deemed to falsely apply to goods a trade mark or
mark, if, without the assent of the proprietor of the trade mark, the person
applies such trade mark, or a mark so nearly resembling it as to be calculated
to deceive, but in any prosecution for falsely applying a trade mark or mark to
goods the burden of proving the assent of the proprietor shall lie on the
defendant.
4 Provision
as to watches
(1) Where a watch case has
thereon any words or marks which constitute, or are by common repute considered
as constituting, a description of the country in which the watch was made, and
the watch bears no description of the country where it was made, those words or
marks shall prima facie be deemed to be a
description of that country within the meaning of this Law, and the provisions
of this Law with respect to goods to which a false trade description has been
applied, and with respect to selling or exposing for or having in possession
for sale, or any purpose of trade or manufacture, goods with a false trade
description, shall apply accordingly.
(2) In this Article, the
expression “watch” means all that portion of a watch which is not
the watch case.
PART 2
FRAUDULENT MARKS AND REPRESENTATIONS
5 Offences
as to trade marks and trade descriptions
(1) Any person
who –
(a) forges
any trade mark;
(b) falsely
applies to goods any trade mark or any mark so nearly
resembling a trade mark as to be calculated to deceive;
(c) makes
any die, block, machine or other instrument for the purpose of forging, or of
being used for forging, a trade mark;
(d) applies
any false trade description to goods;
(e) disposes
of or has in the person’s possession any die, block, machine or other instrument
for the purpose of forging a trade mark; or
(f) causes
any of the aforesaid things to be done,
shall, subject to the provisions of this Law, and unless the person
proves that he or she acted without intent to defraud, be guilty of an offence
against this Article.
(2) Every person who sells,
or exposes for, or has in his or her possession for, sale, or any purpose of
trade or manufacture, any goods or things to which any forged trade mark or
false trade description is applied, 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 be guilty of an offence against this Article,
unless the person proves either –
(a) that,
having taken all reasonable precautions against committing an offence against
this Article, he or she had at the time of the commission of the alleged
offence no reason to suspect the genuineness of the trade mark, mark or trade
description, and that, on demand made by or on behalf of the police, he or she
gave all the information in his or her power with respect to the persons from
whom he or she obtained such goods or things; or
(b) that
otherwise he or she had acted innocently.
(3) Paragraphs (1) and
(2), so far as they relate to false trade descriptions, shall not apply to any
description applied in pursuance of the Fertilizers and Feeding Stuffs (Jersey)
Law 1950, to any article included in the first column of Schedule 1
to that Law.
(4) Every person guilty of
an offence against this Article shall be liable to imprisonment for a term of 2
years and to a fine; and the court before which the person is convicted may order
that any article, instrument or thing by means of or
in relation to which the offence has been committed shall be forfeited.[4]
6 Exemption
of certain persons employed in ordinary course of business
Where a defendant is charged with making any die, block, machine or
other instrument for the purpose of forging, or being used for forging, a trade
mark, or with falsely applying to goods any trade mark or any mark so nearly
resembling a trade mark as to be calculated to deceive, or with applying to
goods any false trade description, or causing to be done any of the things
mentioned in this Article, and proves –
(a) that in the ordinary
course of the defendant’s business the defendant is employed, on behalf
of other persons, to make dies, blocks, machines or other instruments for
making, or being used in making, trade marks, or, as the case may be, to apply
marks or descriptions to goods, and that in the case which is the subject of
the charge the defendant was so employed by some person resident in the British
Islands, and was not interested in the goods by way of profit or commission
dependent on the sale of such goods;
(b) that the defendant took
reasonable precaution against committing the offence charged;
(c) that the defendant had,
at the time of the commission of the alleged offence, no reason to suspect the
genuineness of the trade mark, mark or trade
description; and
(d) that the defendant gave
to the police all the information in the defendant’s power with respect
to the persons on whose behalf the trade mark, mark or
trade description was applied,
the defendant shall be discharged from the prosecution.
7 False
representation as to royal warrant[5]
Any person who falsely represents that any goods are made by a person
holding a Royal Warrant, or for the service of His Majesty, or any of the Royal
Family, or any department of the Government of the
United Kingdom, shall be liable to a fine not exceeding level 3 on the standard scale.
PART 3
IMPORTED GOODS
8 Interpretation
of Part 3
(1) In this Part, unless
the context otherwise requires –
“empire or foreign goods” means imported goods
manufactured or produced in any country outside the British Islands;
“His Majesty’s dominions” includes territories
under His Majesty’s protection and the Republics of India and Pakistan:
Provided that, where an Order in Council has been made by His
Majesty under section 10(1) of the Merchandise Marks Act 1926 of the
United Kingdom directing that any territory shall be included in His
Majesty’s dominions for the purposes of that Act and the Order in Council
has been registered by the Royal Court, that territory shall be included in His
Majesty’s dominions for the purposes of this Law:
Provided further that the Minister may by Order direct that a
country which has ceased to be a part of His Majesty’s dominions shall be
included in His Majesty’s dominions for the purposes of this Law;
“imported goods” means goods imported into Jersey but
does not include –
(a) goods
which since the date of their importation have undergone in Jersey any
treatment or process resulting in a substantial change in the goods; or
(b) goods
manufactured or produced in Jersey which after exportation are brought back
into Jersey, including any such goods which have undergone abroad any treatment
or process not resulting in a substantial change in the goods;
“indication of origin” means, at the option of the person
applying the indication, either –
(a) in
the case of goods manufactured or produced in the British Islands, the word
“British”, in the case of goods manufactured or produced in a part
of His Majesty’s dominions outside the British Islands, the word
“Empire”, and in the case of goods manufactured or produced in any
foreign country the word “foreign”; or
(b) a
definite indication of the country in which the goods were manufactured or
produced,
the indication being given, in either case, conspicuously:
Provided that, in the case of goods produced or manufactured in the
British Islands which have undergone one or more treatments or processes
resulting in a substantial change in the goods, the last of such treatments or
processes having been undergone in any country outside the British Islands, the
indication of origin may at the option of the person applying it be given
either by using, in conjunction with the word “foreign” or the word
“Empire”, as the case requires, words descriptive of the last
treatment or process or by a definite indication that the treatment or process
was undergone in that particular country;
“Minister” means the Chief Minister;
“sale” –
(a) does
not include –
(i) a
sale of goods for consignment by the vendor to a person outside the British
Islands, or
(ii) a
sale of second-hand goods;
(b) subject
as hereinafter provided, includes sale wholesale as well as sale by retail, and
the provisions of this Part of this Law and of any Order made thereunder shall
have effect accordingly:
Provided that references to exposure for sale in Articles 10
and 16 or (unless the Order expressly provides to the contrary) in any Order
made under this Part shall not include exposure for sale wholesale or by a person
being a wholesale dealer;
(c) does
not include the sale of any foodstuffs at any hotel or restaurant or other
premises for consumption thereon or the sale of any foodstuffs which have
undergone a process of cooking, curing or preserving
in the British Islands.[6]
(2) For the purposes of
this Part, imported goods shall be deemed to have been manufactured in the
country in which they last underwent before importation a substantial change by
reason of any treatment or process.
9 Exclusion
of blends and mixtures
(1) Article 10 shall
not extend to blends or mixtures and an Order made under this Part with respect
to goods of any class or description shall not extend to blends or mixtures
consisting of or containing those goods unless the Order expressly so provides,
and, where any Order so provides, the indication of origin to be given in
respect of the blends or mixtures shall, notwithstanding anything in this Law,
be an indication in such form as the Order prescribes.
(2) For the purposes of
this Article, the expression “blend or mixture” does not include
any blend or mixture produced by a process of manufacture from materials of
different kinds.
10 Imported
goods bearing name or trade mark of British manufacturer or trader not to be sold unless accompanied
by indication of origin
(1) It shall not be lawful
to sell, expose for sale, or, by way of advertising goods of some other kind,
distribute, in Jersey, any empire or foreign goods to which there is applied
any name or trade mark being, or purporting to be, the name or trade mark of
any manufacturer, dealer or trader or the name of any place or district within
the British Islands unless the name or trade mark is accompanied by an
indication of origin.
(2) For the purposes of
this Article –
(a) a
name or trade mark shall be deemed to be applied to
goods if it is applied either to the goods themselves or to any covering,
label, reel or other thing in or with which the goods are sold or exposed for
sale; and
(b) the
expression “trade mark” means a mark which
is used upon or in connection with goods for the purpose of indicating that
they are the goods of the proprietor of the mark by virtue of manufacture,
selection, certification, dealing with or offering for sale.
(3) If the Minister is
satisfied, after considering such representations (if any) as may be made to
him or her by any persons appearing to the Minister to have a substantial
interest in the matter, that, having regard to the special circumstances of the
trade, difficulties would arise if this Article applied to goods of any class
or description, or goods sold under any particular designation, and that public
interests would not be materially prejudiced by exempting such goods from the
operation of this Article, the Minister may direct that this Article shall not
apply to such goods, or that goods shall not be treated as falling under this Article
by reason only that they are so designated.
(4) This Article shall not
have effect in respect of the application of a name or trade mark to articles
used or to be used for any of the following purposes, that is to say, as
coverings, labels, reels, or otherwise as articles in or with which goods
manufactured or produced in the British Islands are or are to be sold or
exposed for sale if the name or mark so applied is the name or trade mark of a
manufacturer of, or of a dealer or trader in, those goods in any part of the
British Islands and the name or mark was applied with his or her consent.
11 Power
to require indication of origin in the case of certain imported goods
(1) In any case in which it
appears to the Minister desirable in the interests of manufacturers, producers,
dealers, traders, users or consumers, or of any body of work-people, so to do,
and that the trade of Jersey would not be prejudiced, the Minister may, by Order,
prohibit the sale, or the exposure for sale, in Jersey, of imported goods of
any class or description (being goods to which it is practically possible to
apply an indication of origin effectively and without injury to the goods)
unless they bear an indication of origin.
(2) If it appears to the
Minister to be desirable that any imported goods should bear an indication of
origin at the time of importation and that, having regard to all the
circumstances of the case including the re-export trade of Jersey in that class
or description of goods, such action is not unreasonable, the Minister, without
prejudice to his or her powers under paragraph (1) of this Article, may,
by Order, make provision accordingly, and if any such goods required by any
such Order to bear an indication of origin at the time of importation do not at
that time bear such an indication, they shall be deemed to be goods which are
prohibited to be imported by virtue of Article 13:
Provided that –
(a) subject
to compliance with such conditions as to security for the re-exportation of the
goods as the Minister may impose, an Order under this paragraph shall not apply
to goods imported by way of transhipment or to goods declared on importation to
be for re-exportation; and
(b) nothing
in this paragraph shall be taken to be in derogation of anything contained in
the said Article 13.
(3) Every Order made under
this Article shall specify –
(a) the
manner in which the indication of origin is to be applied to the goods;
(b) the
date on which the Order is to come into force not being a date earlier than 3
months after the date of the making of the Order, except in the case of an Order
revoking a previous Order either entirely or as respects some of the goods to
which that Order relates;
(c) whether
the goods are to bear an indication of origin at the time of importation or of
exposure for sale wholesale,
and any such Order may contain such other provisions as appear to
the Minister to be necessary or expedient for carrying this Article into effect.
(4) Any Order under this Article
may be made to apply to empire or foreign goods to the exclusion of other
imported goods.
12 Penalty
for removal of indication of origin from imported goods
If any person removes, alters or obliterates an indication of origin
which in compliance with the requirements of an Order made under this Part was
borne by the goods at the time of their importation or exposure for sale
wholesale, the person shall be deemed to have acted in contravention of an Order
made under this Part, unless he or she proves to the satisfaction of the court
that the removal, alteration or obliteration was not for the purpose of
concealing the origin of the goods at the time of their sale or exposure for
sale.
13 Prohibition
on importation
(1) This Article applies
to –
(a) goods
which, if sold, would be liable to forfeiture under this Law; and
(b) goods
of foreign manufacture bearing any name or trade mark
being or purporting to be the name or trade mark of any manufacturer, dealer or
trader in the British Islands, unless such name or trade mark is accompanied by
a definite indication of the country in which the goods were made or produced.
(2) Subject to the
provisions of this Law, if any goods to which this Article applies are imported
into Jersey, the importer of the goods, or the importer’s agent, shall be
liable to a fine not exceeding level 3 on the standard scale and the court
before which the importer is convicted may order that the goods shall be
forfeited.[7]
(3) Paragraph (2)
shall not have effect if the Agent of the Impôts
is satisfied that the goods which are imported are for the private and domestic
use of the person importing them.[8]
(4) Where on any goods to
which this Article applies there is a name which is identical with or a
colourable imitation of the name of a place in the British Islands, that name
unless accompanied by the name of the country in which such place is situate
shall be treated for the purposes of this Article as if it were the name of a
place in the British Islands.
(5) Where any goods
imported into Jersey bear any name or trade mark being or purporting to be the
name or trade mark of any manufacturer, dealer or trader in the British
Islands, and the Minister is, upon representations made to him or her, satisfied
that the use of the name or trade mark is fraudulent, the Minister may require
the importer of the goods, or the importer’s agent, to produce any
documents in the importer or agent’s possession relating to the goods,
and to furnish information as to the name and address of the person by whom the
goods were consigned to Jersey and the name and address of the person to whom
the goods were sent in Jersey; and, if the importer or the importer’s
agent fails within 14 days to comply with any such requirement, the importer or
agent shall, for each offence, be liable to a fine not exceeding level 3 on the
standard scale. [9]
(6) Any information
obtained from the importer of the goods or the importer’s agent under paragraph (5)
or from any other source, may be communicated by the Minister to any person
whose name or trade mark is alleged to have been used
or infringed.
14 Imported
goods bearing certification trade mark
Article 10(1), and Article 13(1) and (5), shall apply to a
mark being or purporting to be, a certification mark
registered under Article 4 of the Trade Marks (Jersey) Law 2000 or a certification mark registered or deemed to be registered
under the Trade Marks Act, in the name, as proprietor thereof,
of a person in the British Islands, as they apply to the trade mark of a
manufacturer, dealer or trader in the British Islands:
Provided that the said Article 10(1), as extended by this Article,
shall not have effect in respect of the application of a certification mark to articles
used or to be used for any of the following purposes, that is to say, as
coverings, labels, reels or otherwise as articles in or with which goods
manufactured or produced in the British Islands are or are to be sold or
exposed for sale, if the mark relates or is to relate to those goods, and were
so applied by or with the consent of the proprietor of the mark or by another
in accordance with his or her authorization under the regulations relating to
the mark.[10]
15 Taking
of samples
(1) Any officer in an
administration of the States for which the Minister is assigned responsibility,
being an officer duly authorized in that behalf, may, on production if so
required of the officer’s authority at any time during the hours when the
premises are open for business, enter any premises on which the officer has
reason to believe that there are kept for sale any imported foodstuffs to which
an Order under this Part applies and, on paying or making tender of payment
therefor, take samples of any goods which appear to the officer to be such
imported foodstuffs, and any person who obstructs an officer so authorized in
the execution of the powers conferred on the officer by this Article shall be
deemed to have acted in contravention of an Order made under this Part.
(2) An officer taking a
sample under this Article shall forthwith notify the person on whose premises
the sample is taken or the person’s agent, that the sample is taken in
pursuance of the provisions of this Law, and shall, if required so to do at the
time of giving such notification, select a second like sample or divide the
sample into 2 parts, and shall mark and seal and leave with that person or
agent either the second sample or one part of the divided sample.
16 Offences
(1) If any person –
(a) sells,
exposes for sale, or distributes by way of advertisement, any goods in
contravention of the provisions of this Part; or
(b) acts
in contravention of or fails to comply with any Order made under this Part,
the person shall, subject to the provisions of this Article, be
liable to a fine not exceeding level 3 on the standard scale, and the court
before which the person is convicted may, in the case of a second or subsequent
conviction, order that the goods in relation to which the offence has been
committed shall be forfeited:
Provided that, in the case of the sale wholesale of any goods, other
than goods which by virtue of an Order made under this Part are required to
bear an indication of origin at the time of importation or of exposure for sale
wholesale, it shall be a good defence to proceedings under this paragraph if
the person charged with the offence satisfies the court that the goods were
sold to the purchaser on an undertaking in writing that they would be exported
or sold for exportation to a place outside the British Islands, and any such
undertaking in writing, if it purports to be signed by the purchaser and
specifies the usual business address of the purchaser, shall be admissible as
evidence of the facts appearing therein.[11]
(2) If any person
advertises or offers for sale as being goods of a particular brand or make or
otherwise under a specific designation, whether by means of an illustration or
by means of any written matter, any imported goods of a class or description to
which an Order made under this Part applies, the person shall, if he or she
does not include in the advertisement or offer an indication of the origin of
the goods, and subject to the provisions of this Article, be deemed to have
acted in contravention of an Order made under this Part:
Provided that this paragraph shall not apply in the case of any
advertisement made, issued or published before the
date on which the Order was made.
(3) Where any person sells
or exposes for sale any goods of which any imported goods, being goods to which
an Order made under this Part applies, form a distinguishable part, and that part
is reasonably capable of having applied to it an indication of origin in manner
required by the Order, the person shall, for the purposes of this Article, be
deemed to have sold, or exposed for sale, that part, and the provisions of this
Article shall apply accordingly.
(4) It shall not, within Jersey,
be lawful to sell or offer for sale by sample goods of a class or description
to which an Order made under this Part applies unless the required indication
of origin is applied to the samples or unless particulars corresponding to the
particulars which would be contained in such an indication are communicated in
writing to the person to whom the samples are submitted, and if any person acts
in contravention of the provisions of this paragraph he or she shall, subject
to the provisions of this Article, be deemed to have acted in contravention of
an Order made under this Part.
(5) A person shall not be
treated as being guilty of an offence against this Part if he or she
proves –
(a) that,
having taken all reasonable precautions against committing such an offence, the
person had at the time of the commission of the alleged offence no reason to
suspect that the goods were goods to which this Part or an Order made
thereunder applied, and that on a demand made by or on behalf of the police the
person gave all the information in his or her power with respect to the persons
from whom he or she obtained the goods; or
(b) that
otherwise the person had acted innocently.
17 Power
of employer to exempt himself or herself from penalty on conviction of the
actual offender
Where an employer or principal is charged with the offence of having
acted in contravention of, or failed to comply with, the provisions of this Part
or any Order made thereunder, the employer or principal shall be entitled, on
giving not less than 3 days’ notice of the employer or principal’s
intention to the prosecution, to have any other person whom the employer or
principal alleges to be the actual offender brought before the court at the
time appointed for the hearing of the charge, and, if after the commission of
the offence has been proved, the employer or principal proves to the
satisfaction of the court that the employer or principal has used due diligence
to enforce compliance with the provisions of this Part or of the Order, and
that the said other person had committed the offence in question without the
employer or principal’s consent, connivance or wilful default, the said other
person shall, subject to the provisions of Article 16(5), be convicted of
the offence, and the employer or principal shall be exempt from any penalty.
The person so convicted shall, in the discretion of the court, be
also liable to pay any costs incidental to the proceedings:
Provided that the prosecution shall in any such case have the right
to cross-examine the employer or principal if the employer or principal gives
evidence, and any witnesses called by the employer or principal in support of
the charge, and to call rebutting evidence.
18 Rules
as to evidence
In any prosecution for an offence against this Part, evidence of the
port of shipment shall be prima facie evidence of the place or country in which the goods were made or
produced:
Provided that, in the case of goods imported after transhipment in
the British Islands or after transit through the British Islands, the reference
in this Article to the port of shipment shall be construed as a reference to
the port from which the goods were shipped to the British Islands.
19 Provisions
as to Orders and directions
(1) [12]
(2) The Greffier
of the States shall cause every Order made, and direction given, under this Part
to be printed and shall cause to be published in 2 newspapers circulating in Jersey,
one being a publication in French and the other a publication in English, a
notice stating that the Order or direction has been made or given, the date of
the coming into force thereof and the place at which printed copies thereof may
be purchased.
PART 4
GENERAL
20 Trade mark, how described in proceedings and documents
In any proceedings or in any document, in which any trade mark or forged trade mark is intended to be mentioned,
it shall be sufficient, without further description and without any copy or
facsimile, to state that trade mark or forged trade mark to be a trade mark or
forged trade mark.
21 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 vendor shall be
deemed to warrant that the mark is a genuine trade mark and not forged or
falsely applied, or that the trade description is not a false trade description
within the meaning of this Law, unless the contrary is expressed in some
writing signed by or on behalf of the vendor and delivered at the time of the
sale or contract to and accepted by the purchaser.
22 Power
to order forfeiture of goods and things having no known owner
If the owner of any goods or things which, if the owner thereof had
been convicted, would be liable to forfeiture under this Law, is unknown or
cannot be found, the Connétable of the parish
in which those goods or things are discovered, may cause to be published, in 2
newspapers circulating in Jersey, one being a publication in French and the
other a publication in English, a notice stating that on the date specified in
the notice (being at least 21 days after the date of the publication thereof)
an application will be made to the Magistrate’s Court for an Order that
such goods or things be forfeited, and, unless the owner or any person on the
owner’s behalf, or other person interested in the goods or things, shows
cause to the contrary, the court may order that such goods or things or any of
them shall be forfeited.
23 Disposal
of forfeited goods
(1) Any goods or things
forfeited under this Law may be destroyed or otherwise disposed of in such
manner as the court may direct, and the court may, out of any proceeds which
may be realized by the disposal of such goods (all trade marks and trade descriptions being first
obliterated), award to any innocent party any loss the party may have
innocently sustained in dealing with such goods.
(2) Subject to the
provisions of paragraph (1), any proceeds realized by the disposal of
goods forfeited under this Law may be retained by the States.[13]
24 Punishment
of accessories
Any person who, being within Jersey, procures, counsels, aids, abets
or is accessory to the commission outside Jersey, of any act which, if
committed in Jersey, would under this Law be an offence, shall be guilty of
that offence as a principal, and be liable to be proceeded against, tried and convicted in Jersey as if the offence had been
committed in Jersey.
25 Provisions
of law as to false description not to apply in certain cases
Where, at the commencement of this Law, a trade description is
lawfully and generally applied to goods of a particular class, or manufactured
by a particular method, to indicate the particular class
or method of manufacture of such goods, the provisions of this Law with respect
to false trade descriptions shall not apply to such trade description when so
applied:
Provided that where such trade description includes the name of a
place or country, and is calculated to mislead as to the place or country where
the goods to which it applied were actually made or produced, and the goods are
not actually made or produced in that place or country, this Article shall not
apply unless there is added to the trade description, immediately before or
after the name of that place or country, in an equally conspicuous manner, with
that name, the name of the place or country in which the goods were actually
made or produced, with a statement that they were made or produced there.
26 Savings
(1) This Law shall not
exempt any person from any action, suit or other proceeding which might, but
for the provisions of this Law, be brought against him or her.
(2) Nothing in this Law
shall entitle any person to refuse to disclose any matter or answer any
question in any action, but such disclosure or answer shall not be admissible
in evidence against such person in any prosecution for an offence against this Law.
(3) Nothing in this Law
shall be construed so as to render liable to any
prosecution or punishment any servant of a master resident in Jersey who bona
fide acts in obedience to the instructions of such master and, on demand made
by or on behalf of the police, has given full information as to the identity of
the servant’s master.
27 Citation
This Law may be cited as the Merchandise Marks (Jersey)
Law 1958.