not lawfully used, but only that the plaintiff, in consequence of misconduct, is not entitled to the protection of an injunction (Poland, Merchandise Marks Act, 21).

tions in

and abet

In every indictment, pleading, proceeding, and docu- Allega ment, it is sufficient to mention that the trade mark is in indictpoint of fact a trade mark, without further describing it or ment. setting forth any copy thereof (s. 10). Any person who Aiding aids, abets, counsels, or procures the commission of any ting. offence made a misdemeanor under the Act, is himself guilty of a misdemeanor (s. 13), and in connection with this provision it is necessary to observe that abettors of offences punishable on summary conviction can be dealt with under 11 & 12 Vict. c. 43, s. 5. Where, however, a master intends a servant to commit an offence punishable summarily under the Act, he should be summoned as principal and the servant as aiding and abetting (Wilson v. Stewart, 3 B. & S. 913); on the other hand, the master may sometimes be charged with aiding the servant (Howells v. Wynne, 32 L. J. C. P. 281).

ment on

A person convicted of a misdemeanor under the Act, is Punishliable to two years' imprisonment, or less, with or without conviction. hard labour, and he is also liable to a fine, either in addition to or in substitution for imprisonment (s. 14).

penalties.

In cases in which any person shall have committed an Recovery of offence under the Act for which he is liable to a penalty, such penalties may be recovered in England, Wales, or Ireland in a Qui Tam action brought in any Court of Record, or in England and Wales by a summary proceeding before two justices of the peace (s. 15). All cases by way of summary proceeding are within 11 & 12 Vict. c. 43, one of Jervis's Acts (s. 16), except in so far as the limitation as to commencing proceedings is concerned, for by s. 18 of the Merchandise Marks Act, it is provided that no person shall commence any action or proceeding for the recovery of any penalty, after the

Jurisdic tion of Quarter Sessions.

expiration of three years next after the committing of the offence, or one year next after the first discovery thereof by the person proceeding. In any action, whether at common law or otherwise, the Court has power to award an injunction (s. 21), and the plaintiff may recover damages (s. 22). A definition of what constitutes a "mark," and what a "trade mark," is laboriously set out in the first section of the Act.

It would appear to be questionable whether the Courts of Quarter Sessions have jurisdiction to try any person charged with a misdemeanor under the Act (see Poland, Merchandise Marks Act, p. 26).

Indictment It is evident that an indictment for the forgery of a for forgery. trade mark may be preferred under the Merchandise Marks Act, but at common law there is no forgery; there is no fraudulent making or alteration of a writing to the prejudice of another man's right; no forging of a false document to represent a genuine one (Reg. v. Smith, 8 Cox, 32), and even where a trade mark consists of a signature, the imitation of it does not at common law amount to forgery (Reg. v. Closs, 7 Cox, 494). It appears to be certain, therefore, that if a prosecutor wishes to succeed on a charge of this nature he must lay his information under the Merchandise Marks Act, and not at common law.

Indiet-* ment for false pretence.

An indictment will also lie at the instance of the party who has been induced to part with any chattel, money, or valuable security in exchange for an article bearing a fraudulent imitation of a trade mark, against the person who fraudulently represented the article to be of a kind different to what it really was (Reg. v. Dundas, 6 Cox, 380; Reg. v. Suter, 10 Cox, 577); it is not necessary that the misrepresentation should be made in actual words, and all persons who have concurred and assisted in the fraud may be indicted and convicted as principals, though

not present at the time of making the pretence and obtaining the money or goods (R. v. Moland, 2 Mood. C. C. 276).

An indictment for obtaining money, &c., under false pretences cannot be presented to a grand jury without a previous investigation before a magistrate, or unless the fiat of the Attorney or Solicitor-General or one of the judges of the Supreme Court be first obtained (22 & 23 Vict. c. 17), but an indictment for attempting to obtain, &c., may be preferred without taking any of these steps (R. v. Burton, 13 Cox, 71).

In some cases the prisoner may be indicted for a cheat Indictat common law (see R. v. Closs, 7 Cox, 494).

In an indictment for false pretences, it is not necessary to allege any attempt to defraud a particular person, or any ownership of the chattel, money, or valuable security (24 & 25 Vict. c. 96, s. 88), but it is necessary to show on the face of such indictment that the defendant did the act charged with intent to defraud (see Reg. v. Henderson, 2 Moo. C. C. 192).

Indictments, whether preferred under the Act or at Common Law, are very unusual, the remedy almost exclusively sought being in the Chancery Division of the High Court of Justice.

ment for a cheat at

common

It is provided by the Patents, Designs, and Trade Penalty on Marks Act, 1883 (46 & 47 Vict. c. 57), that any person presenting falsely rewho, inter alia, describes any trade mark applied to any articles to be regis. article sold by him as registered, which is not so, shall be tered. liable for every offence, on summary conviction, to a fine not exceeding £5, and a person is deemed to represent that a trade mark is registered, if he sells the article with the word "registered," or any word or words expressing or implying that registration has been obtained for the article (sic) stamped, engraved, or impressed on, or otherwise applied to the article (s. 105). This section, as drawn, limits the

offence to the actual selling of an article with the false representation affixed, the mere exposure for purposes of sale would not therefore be sufficient to convict a defendant. If any person makes or causes to be made a false entry in any register kept under the Act, or a writing falsely purporting to be a copy of an entry in any such register, or produces or tenders, or causes to be produced or tendered in evidence, any such writing, knowing the entry or writing to be false, he shall be guilty of a misdemeanor (ibid. s. 93).

CHAPTER XII.

ON EVIDENCE AND PLEADING AND HEREIN OF INSPECTION

AND DISCOVERY, JOINDER, ACCOUNT, DAMAGES, AND
COSTS.

Defence

mark

is intrinsi

A DEFENCE that a registered trade mark is intrinsically that trade bad by reason inter alia of false representation or fraud although on the part of the plaintiff is a good defence, and so is registered a defence that such trade mark, although registered, cally bad. possesses none of the features insisted on by the 64th section of the Act of 1883 (46 & 47 Vict. c. 57). (See Re Palmer's Application, 21 Ch. D. 47); the books of the Comptroller which show marks the registration of which has been refused, would not seem to be evidence that these marks are publici juris (see Orr Ewing v. Johnston, 13 Ch. D. 434.)

The 72nd section of the same Act provides that except where the Court has decided that two or more persons are entitled to be registered as proprietors of the same trade mark, the Comptroller shall not register in respect of the same goods, or description of goods, a trade mark identical with one already on the register with respect to such goods or description of goods; furthermore, the Comptroller shall not register with respect to the same goods, or description of goods, a trade mark so nearly resembling a trade mark already on the register with respect to such goods, or description of goods, as to be calculated to deceive.

Tridence

of misre

Independently of the Act, however, it would seem to be settled that any misrepresentation on the part of the presenta