Names like names of places in the United Kingdom. Customs regulations. Customs Act, 1870. 66 "evidence requisite for any of the purposes of this section, and the mode of verification of such evidence. '(4.) 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. '(5.) 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. "(6.) The Commissioners of Customs, 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 Commissioners of her Majesty's Treasury. “(7.) The regulations may provide for the informant reimbursing the Commissioners of Customs all expenses and damages incurred in respect of any detention made on his information, and of any proceedings consequent on such detention. "(8.) All regulations under this section shall be published in the 'London Gazette' and in the 'Board of Trade Journal.' "(9.) This section shall have effect as if it were part of the Customs Consolidation Act, 1876 (), and shall accordingly apply to the Isle of Man as if it were part of the United Kingdom. (h) 39 & 40 Vict. c. 36, s. 42, pp. 526, 530. "(10.) Section two of the Revenue Act, 1883 (i), This section is a most important part of the scheme of the Act, for it, so far as it is effective, stops at the outset a class of frauds which, according to the evidence given before the Committees of 1862 and 1887, were widely prevalent and continually increasing, to the grave detriment of English manufacturers. Its main provisions are The Interin accordance with the legislation now adopted in most national civilized countries, under the International Convention, drawn up at conference on the subject of Industrial Property and Merchandise Marks, at Paris, in 1883, and amended at the subsequent Conference at Madrid, in 1889. The terms of the several Conventions are set out in the Appendix, pp. 658-665. According to English law these terms, or the terms of any of the numerous treaties concluded between this country and other countries for the mutual protection of the trade-mark and allied rights of their respective subjects, have no application to or between subjects, and cannot be recognized as having any legal effect, except so far as they have been embodied in the municipal law of the several countries (7). An English Court is not competent (i) 46 & 47 Vict. c. 55, s. 2, amending the last-cited section. (k) 1st of Jan. 1888. Customs Regulations, of 1 Dec. 1887. (1) See Art. IX. of the International Convention, Book I. Chap. XX., p. 454; and The Californian Fig Syrup Co.'s Tm., 40 C. D. 620; 6 R. P. C. 126 (1888), Stirling, J., decided on sect. 103 of к. the Patents, &c. Act, 1883; and M M Conventions. Sect. 42 of the Customs Act, 1876. Only marked goods come within the prohibition. to inquire into a matter involving the construction of treaties or other acts of state, or to treat them as in any way operative to create or modify rights or duties, and the Crown cannot sanction any invasion by its officers of the rights of private individuals as they exist according to the municipal law, on the ground that it is necessary in order to comply with or compel obedience to a treaty (n). France was, apparently, the first country to take effective steps to stop the importation of goods made abroad, but bearing words or marks describing them as made in the country of importation (o); but sect. 42 of the Customs Act of 1876, amended by the now repealed section of the Revenue Act of 1883, was amply sufficient for the purpose, if it had been effectively enforced. Sect. 42 of the Customs Act, 1876, contains a list of goods among which the goods enumerated in this section are to be considered as included, and it provides that— "The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom, save as thereby excepted (p) ; and if any goods so enumerated and described shall be imported or brought into the United Kingdom contrary to the prohibitions or restrictions contained therein, such goods shall be forfeited, and may be destroyed or otherwise disposed of as the Commissioners of Customs may direct" (q). The policy of the Act is to prevent fraudulent marking, whether by means of forged trade-marks or false trade descriptions, and this section, as the remainder of the Act, only applies to goods which bear marks bringing them within its terms. There is no general obligation to stamp (n) Walker V. Baird, (1892) A. C. 491. (0) See M. M. A. Report, 1887, Index, "France." (p) There are no general exceptions, but only exceptions relative to particular classes of goods, none of which are here material. (2) For the section dealing with the importation of watches, see p. 526. imported goods with any indication of origin (r). And if the deceptive marks which make such an indication necessary under the Act appear only upon the covering or package of goods, it is considered sufficient that the qualifying indication of origin should be stamped on the covering or package only also (s). All such goods.]-The goods which are liable to forfeiture under this section (t), in addition to those specially enumerated in sub-sect. (1), are goods which, if sold, would be liable to forfeiture under the Act, that is, by the joint operation of sect. 2 (3) (iii.) and sect. 2 (1), goods or things to which any forged trade-mark (u) or false trade description (x) is applied (y), or to which any trade-mark (≈), or mark so nearly resembling a trade-mark as to be calculated to deceive (a), is falsely applied (b). It is submitted that the words "if sold" must here be construed to mean if sold with such guilty intent as is necessary to justify a conviction under the Act (c). This is in accordance with the principle of throwing upon the person charged the onus of proving that he acted without intent to defraud, or that he is protected by one of the special defences specified in the Act, or that he acted otherwise innocently (d). Otherwise there could be no forfeiture under this part of the section, except where an offence would have actually been committed had the goods been sold; and sale by an innocent person would not constitute an offence. The construction contended for accords with the remainder of the section, and with the older Acts, for it is plain that the forfeitures constituted by the latter part of sub-sect. (1) Goods bearing English words or names. Goods from the Colonies States. are independent of proof of guilty intention on the part of anyone, and the clauses of sect. 42 of the Customs Consolidation Act of 1876, and sect. 2 of the Revenue Act of 1883, which are replaced by this section, contained no reference to the knowledge, intention, or purposes of the importer, or of any other person in relation to the goods (e). So far as can be judged from the summary of agricultural produce detained under the Act in the years 1888 and 1889, which is appended to the M. M. A. Report, 1890, a very large proportion of the goods seized upon importation is seized because they bear words or lettering in the English language (ƒ). As regards words forming parts of the goods on which they appear, see ante, p. 478; and as regards goods partly made in two or more countries, p. 480. The practice of the Customs House authorities in the or the United matter was stated by Mr. Follett, in the paper already cited (g), to be based upon the conclusion that "the use of the English language and of English trade descriptions was misleading and primâ facie inadmissible on foreign goods; but that this could not be held to apply to foreign goods coming from the United States or the Colonies." Goods bear Irish trade marks or names. All goods of foreign manufacture, &c.]—The prohibition ing British or of this part of sub-sect. (1) is absolute (subject to the proviso contained in it) without regard to intention, or to any licence or right to use the name or trade-mark from the proprietor, and it applies where the name or trade-mark has been applied by the proprietor himself, or in accordance with his orders, for the section is intended to guard against the importation of goods which appear to be home-made, because they bear the name or trade-mark of a manufacturer, &c., in the United Kingdom, in cases where the name or trade-mark is used honestly, and in cases where it (e) Cf. sect. 12, "Search warrant," and "Forfeiture without conviction," pp. 520, 522. (f) See sect. 3 (1) (b), "place or country," p. 480. (g) M. M. A. Report, 1890, Appendix, p. 275. As to when the officers are expected to detain offending goods without special information, see p. 680. |