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Fiji Legislation |
LAWS OF FIJI
CHAPTER 241
MERCHANDISE
MARKS
__________
(Ed. 1978)
Ordinances Nos. 20 of 1933, 2 of 1945, 37 of 1966
AN
ACT RELATING TO THE FRAUDULENT MARKING OF
MERCHANDISE
[25th July, 1933.]
Short title
1.
This Act may be cited as the Merchandise Marks Act.
Interpretation
2.-(1)
In this Act, unless the context otherwise requires -
"Comptroller" means the Comptroller of Customs and Excise;
"false trade description" means a trade description which is false 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 in a material respect and also every trade description so nearly resembling some other trade description as to be calculated to deceive, 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;
"goods" means anything which is the subject of trade or 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-mark" includes any trade-mark which either with or without registration is protected by law in any country or territory of the Commonwealth or in any foreign state to which the provisions of section 91 of the Imperial Patents and Designs Act, 1907, are under Order in Council for the time being applicable; and
(Amended by 37 of 1966, s. 64.)
"trade description" means any description, statement or indication, direct or indirect, as to -
(a) the number, quantity, measure, gauge or weight of any goods; or
(b) the place or country in which any goods were made or produced; or
(c) the mode of manufacturing or producing any goods; or
(d) the material of which any goods are composed; or
(e) 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
Act.
(2) The customs entry
relating to imported goods shall, for the purposes of this Act, be deemed to be
a trade description applied
to the
goods.
(3) The provisions of this
Act 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.
(4) 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
purposes of this
enactment, the expression "false name or initials" means, as applied to any
goods, any name or initial of a person
which -
(a) is not a trade-mark or part of a trade-mark; and
(b) is identical with or a colourable imitation of the name or initials of a person carrying on business in connexion with goods of the same description and not having authorised the use of such name or initials; and
(c) is either the name or initials of a fictitious person or the name or initials of some person not bona fide carrying on business in connexion with such goods.
Offences as to trade-marks and trade descriptions
3.-(1)
Every person who-
(a) forges any trade-mark; or
(b) falsely applies to goods any trade-mark or any mark so nearly resembling a trade-mark as to be calculated to deceive; or
(c) makes any die, block, machine or other instrument for the purpose of forging or of being used for forging a trade-mark; or
(d) disposes of or has in his possession any die, block, machine or other instrument for the purpose of forging a trade-mark; or
(e) applies any false trade description to goods; or
(f) causes any of the things above in this section mentioned to be done, shall, subject to the provisions of this Act and unless he proves that he acted without intent to defraud, be guilty of an offence against this Act.
(2)
Every person who sells or exposes or has in his possession for sale or for 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, unless he proves that -
(a) 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 of the trade-mark or trade description; and
(b) on demand made by or on behalf of the prosecutor he gave all the information in his power with respect to the person or persons from whom he obtained such goods or things; or
(c) otherwise he acted innocently,
be
guilty of an offence against this
Act.
(3) Every person guilty of an
offence against this Act shall be liable to imprisonment for a term not
exceeding two years or to a
fine or to both imprisonment and a fine, and to
forfeit to Her Majesty every chattel, article, instrument or thing by means of
or
in relation to which the offence was committed.
(Substituted by 2 of 1945, s. 98, and amended by 37 of 1966, s. 64.)
Who to be deemed to forge a trade mark
4.
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 Act 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.
Who to be deemed to apply a trade-mark or trade description
5.-(1)
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; or
(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; or
(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 mark so nearly resembling a trade-mark as to be calculated to deceive 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 connexion with which it is used are designated or described by that trade-mark or mark or trade description.
(2)
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) 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 into or
to any covering, label, reel or other
thing.
(4) A person shall be
deemed falsely to apply to goods a trademark or mark who, without the assent of
the proprietor of a trade-mark,
applies to any goods such trade-mark or a mark
so nearly resembling it as to be calculated to deceive, and, 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.
As to persons employed in the ordinary course of business in making trade-mark dies, etc.
6.
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 any of the things in this section mentioned to be
done,
and proves that -
(a) in the ordinary course of his business he 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, he was so employed by some person resident in Fiji and was not interested in the goods by way of profit or commission dependent on the sale of such goods; and
(b) he took reasonable precautions against committing the offence charged; and
(c) he 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) he gave to the prosecutor all the information in his power with respect to the persons on whose behalf the trade-mark, mark or description was applied,
he
shall be discharged from the prosecution but shall be liable to pay the costs
incurred by the prosecutor unless he has given due
notice to him that he will
rely on the above defence.
Application of Act to watches
7.
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 Act and the provisions of this Act with
respect to goods
to which a false trade description has been applied and with
respect to selling or exposing or having in possession for sale or any
purpose
of trade or manufacture goods with a false description shall apply accordingly,
and, for the purposes of this section, the
expression "watch" means all that
portion of a watch which is not the watch-case.
Sufficiency of description of trademark in pleadings, etc.
8.
In any information, pleading, proceeding or 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.
Evidence
9.
In any prosecution for an offence against this Act -
(a) 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; and
(b) in the case of imported goods evidence of the port of shipment shall be prima facie evidence of the place or country in which the goods were made or produced.
Accessories to certain acts committed outside Fiji
10.
Any person who, being in Fiji, procures, counsels, aids, abets or is accessory
to the commission outside Fiji of any act which, if
committed in Fiji, would
under this Act be an offence, shall be guilty of that offence as a principal and
be liable to be proceeded
and informed against and tried and convicted in any
part of or place in Fiji in which he may be as if the offence had been there
committed.
Search warrants
11.-(1)
Where upon complaint of an offence against this Act, a magistrate has issued
either a summons requiring the defendant charged
by such information to appear
to answer to the same or a warrant for the arrest of such defendant and either
the said magistrate
on or after issuing the summons or warrant or any other
magistrate is satisfied by information on oath that there is reasonable cause
to
suspect that any goods or things by means of or in relation to which such
offence has been committed are in any house or premises
of the defendant or
otherwise in his possession or under his control in any place, such magistrate
may issue a warrant under his
hand by virtue of which it shall be lawful for any
police officer named or included in such warrant to enter such house, premises
or place at any reasonable time by day and to search therefor and seize and take
away such goods and things, and any goods or things
seized under any such
warrant as last aforesaid shall be brought before a magistrate of the Division
in which such goods or things
are found for the purpose of determining whether
the same are or are not liable to forfeiture under this Act.
Forfeiture in special cases
(2) If the owner of any goods
or things which, if the owner or possessor thereof had been convicted under this
Act, would be liable
to forfeiture is unknown or cannot be found, a complaint
may be laid for the purpose only of enforcing forfeiture of such goods or
things
and the magistrate of a Division in which such goods or things are found many
cause notice to be advertised stating that,
unless cause is shown to the
contrary at the time and place named in such notice, such goods or things will
be forfeited, and at
such time and place the magistrate, unless the owner or
some person on his behalf or other person interested in the goods or things
show
cause to the contrary, may order such goods or things or any of them to be
forfeited.
Disposal of forfeited articles and compensation to innocent parties
(3) Any goods or things
forfeited under this section or under any other provision of this Act may be
destroyed or otherwise disposed
of, all trade-marks and trade descriptions being
first obliterated in such manner as the court by which the same are declared to
be forfeited may direct, and the court may, out of any proceeds which may be
realized by the disposition of such goods, award to
any innocent party
compensation for any loss that he may have sustained in dealing with such
goods.
Costs
12.
On any prosecution under this Act, 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 the prosecutor
respectively.
Limitation of prosecutions
13.
No prosecution for an offence against this Act shall be commenced after the
expiration of three years next after the commission
of such offence or one year
next after the first discovery thereof by the prosecutor, whichever expiration
first happens.
Appeals
14. A conviction or order by a magistrate under this Act shall be subject to appeal to the Supreme Court in the manner provided by the Criminal Procedure Code. (Substituted by 2 of 1945, s. 98.)
(Cap. 21.)
Prohibition of importation of goods liable to forfeiture
15.
In order to make provision for prohibiting the importation of goods which, if
sold, would be liable to forfeiture under this Act
-
(a) all such goods and also all 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 United Kingdom, unless such name or trade-mark is accompanied by a definite indication of the country in which the goods were made or produced, are hereby prohibited to be imported into Fiji and shall be included among goods absolutely prohibited to be imported as if they were specified in that behalf in any Customs Act for the time being in force in Fiji;
(b) before detaining any such goods or taking any further proceedings with a view to the forfeiture thereof under the law relating to the customs, the Comptroller may require the regulations under this section, whether as to information, security, conditions or other matters, to be complied with, and may satisfy himself in accordance with those regulations that the goods are such as are prohibited by this section to be imported;
(c) the Comptroller may from time to time make, revoke and vary regulations either general or special respecting the detention and forfeiture of goods the importation of which is prohibited by this section and the conditions, if any, to be fulfilled before such detention and forfeiture, and may, by such regulations, determine the information, notices and security to be given and the evidence requisite for any of the purposes of this section and the mode of verification of such evidence;
(d) where there is on any goods a name which is identical with or a colourable imitation of the name of a place in the United Kingdom, that name, unless accompanied by the name of the country in which such place is situate, shall be treated for the purposes of this section as if it were the name of a place in the United Kingdom;
(e) such regulations may apply to all goods the importation of which is prohibited by this section or different regulations may be made respecting different classes of such goods or of offences in relation to such goods;
(f) the Comptroller in making and in administering the regulations and generally in the administration of this section, whether in the exercise of any discretion or opinion or otherwise, shall act under the control of the Minister;
(g) the regulations may provide for the informant reimbursing the Comptroller all expenses and damages incurred in respect of any detention made on his information and of any proceedings consequent on such detention;
(h) all regulations made under the provisions of this section shall be published in the Gazette.
Warranty of genuineness of marks to be applied on sale of marked goods
16.
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 Act 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 vendee.
Provisions of Act as to false trade description not to apply in certain cases
17.
Where on the 1st day of December, 1894, a trade description was 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
Act 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 is applied were
actually made or produced and the goods were not actually made or produced in
that place or country, this section 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 such 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.
Savings
18.-(1)
This Act shall not exempt any person from any action, suit or other proceeding
which might, but for the provisions of this Act,
be brought against
him.
(2) Nothing in this Act
contained shall entitle any person to refuse to make a complete discovery or to
answer any question or interrogatory
in any action or suit, but such discovery
or answer shall not be admissible in evidence against such person in any
prosecution for
an offence against this
Act.
(3) Nothing in this Act
contained shall be construed so as to render liable to any prosecution or
punishment any servant of a master
resident in Fiji who bona fide 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.
False representations as to Royal Warrant, etc.
19.
Any person who falsely represents that any goods are made by a person holding a
Royal Warrant or for the service of Her Majesty or
any of the Royal Family or
any Government department shall be liable to a fine not exceeding forty dollars.
(Amended by 2 of
1945, s. 98.)
Controlled
by Ministry of
Finance
______________
CHAPTER 241
MERCHANDISE MARKS
SECTION
15.
- MERCHANDISE MARKS (DETENTION OF GOODS)
REGULATIONS
Regulations 14th Aug., 1956 [in force 5th Oct., 1956]
Made by the Comptroller of
Customs and Excise and approved by the Governor
Short title
1.
These Regulations may be cited as the Merchandise Marks (Detention of Goods)
Regulations.
Interpretation
2.
In these Regulations, unless the context otherwise requires -
"officer of customs" means an officer acting under general or special direction of the Comptroller;
"value of goods" means value irrespective of duty.
Detention of goods
3.
All goods referred to in section
15
of the Act which, upon examination, are
detected by an officer of customs, are to be detained by him without the
requirement of previous
information.
Conditions
4.
In giving information with a view to detention, an informant shall fulfill the
following conditions:-
(a) he shall give to the Collector of Customs for the port of expected importation, notice in writing stating -
(i) the number of packages expected, as far as he is able to state the same;
(ii) the description of the goods by marks or other particulars sufficient for their identification;
(iii) the name or other sufficient indication of the importing ship;
(iv) the manner in which the goods infringe the Act;
(v) the expected date of arrival of the ship;
(b) he shall deposit with the Collector of Customs as aforesaid a sum sufficient, in the opinion of the Collector of Customs, to cover any additional expenses which may be incurred in the examination required by reason of his notice.
Security may be required
5.
If, upon arrival and examination of the goods, the officer of Customs is
satisfied that there is no ground for their detention, they
shall be delivered.
If he is not so satisfied, he shall decide either to detain the goods, as in a
case of detention upon ordinary
examination, or to require security from the
informant for reimbursing the Comptroller or his officers in respect of all
expenses
and damages incurred in respect of the detention made on his
information and of any proceedings consequent thereon.
Form of security
6.
The security thus required must be an immediate
ad
valorem deposit of ten per cent on the
value of the goods, as fixed by the officer of customs from the quantities or
value shown by the entry;
and, also, subsequently a bond to be completed within
four days in such sum not less than double the value of the goods as the
Comptroller
may require, with two approved sureties. The
ad
valorem deposit shall be returned upon
completion of the bond, and shall not be required if, as an alternative where
time permits, the informant
prefers to give a like bond before examination upon
estimated value of the goods declared to by him under statutory declaration.
If
the security is not duly given as above required there shall be no further
detention of the goods.
Forms
7.
The "notice" and "bond" required as above shall be in the forms contained in the
Schedule, or in such other form as the Comptroller
may from time to time order
and direct.
Discharge of security
8.
The security taken under these Regulations shall be given up at the times
following:-
(a) where given before examination, and if no detention, forthwith;
(b) where given on detention -
(i) if the forfeiture is completed, either by lapse of time or ultimate condemnation by a court, then on such completion of forfeiture;
(ii) if the forfeiture is not completed, then -
(aa) if the goods are released by the Comptroller and no action or suit has been commenced against him or any of his officers, in respect of the detention, then at the expiration of six months from the time of detention; or
(bb) if the goods are released for failure of proceedings taken for the forfeiture and condemnation thereof upon complaint under Part XVI of the Customs Act, and no action or suit has been commenced against the Comptroller or any of his officers, in respect of the detention, then at the expiration of six months from the trial of such complaint;
(Cap. 196.)
(iii) if within such periods as aforesaid any such action or suit as aforesaid has been commenced then upon the ultimate conclusion of such action or suit, and the fulfilment of the purpose for which the security was given.
Application
9.
These Regulations apply to transhipment and transit goods as well as to goods
landed to be warehoused or for home consumption.
SCHEDULE
NOTICE
To the Comptroller of
Customs and Excise or Collector of Customs at the port of
............................ I hereby give you notice
that the undermentioned
goods that is to say,....................... (1).............................
are about to be imported into
your port on or about the ........................
day or ......................... next in the ................................
(2).................... from
......................................
That
such goods are liable to detention and forfeiture being
..........................................(3).................................................
That .............................of ................................. and ................................... of .................... are prepared to
become
my sureties in such bond as may be required upon detention of the
goods.
And I request that the said goods may be detained and dealt with accordingly.
Dated this ................ day ........................., 19.........
A.
B.
(or agent for
)
Note.
-...........................................................................................
his
bankers (or) barristers and solicitors, and ...............................
............................................................to
his bankers (or)
barristers and solicitors as to his sufficiency for the penalty of the
bond.
(1) Describe the goods, numbers of packages, marks used and any other particulars necessary for their identification.
(2) Describe the ship or aircraft and give name or indication.
(3) State how the goods infringe the Act and if the infringement is one as to a forged trade-mark protected in a British possession or foreign state, state the possession or state; or if the infringement is one as to place or country of origin, state the name of the place or country falsely used.
__________
BOND
Know all men by these
presents, that we ............ A.B. .................... and
............................. are held and firmly
bound unto Her Majesty the
Queen in the sum of .............................. dollars to be paid to Her
Majesty the Queen, her Heirs
or successors. For which payment well and truly to
be made we bind ourselves, jointly and severally, our heirs, executors and
administrators
firmly by these
presents.
Dated this ......... day
of ................ in the year of our Lord one thousand nine hundred and
.........................
Whereas
the above-named ................ A.B .................. has by a notice dated
the ............... day ................. informed
the Comptroller of Customs
and Excise or the Collector of Customs at .......................... that the
undermentioned goods, that
is to say ................................. were
about to be imported into the port of ...................................
contrary
to section
50
of the Customs Act, and required the said goods should be detained and dealt
with accordingly. And whereas the said goods duly arrived
in the said port on
the ............ day of ................ last, and are now detained pursuant to
the said notice.
Now the condition
of this obligation is such that if the said ..................
A.B................................., his heirs,
executors, and administrators,
shall well and effectually indemnify, save harmless, and keep indemnified Her
Majesty, her Heirs and
Successors, and all her and their officers of Customs and
Excise and their executors or administrators, from and against all loss
or
damage, payment or payments, and all costs and expenses which her said Majesty,
her Heirs or Successors, and her and their officers
of Customs and Excise, their
executors or administrators, shall or may sustain or incur by reason or on
account of any detention
of the said goods following upon the information
contained in such notice and any proceedings consequent upon such detention,
then
this obligation shall be void, or otherwise shall be and remain in full
force and virtue.
________________
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