ARRANGEMENT OF SECTIONS
1 Short title
3 Offences as to trade marks and trade descriptions
4 Forging trade mark
5 Applying trade marks or descriptions to goods
6 Exemptions of certain persons employed in the ordinary course of business
7 Application of this Act to watches
8 Trade mark, how described in pleading
9 Rules as to evidence in prosecutions under this Act
10 Punishment of accessories
11 Search warrant and forfeiture of goods
12 Cost of prosecution or defence
13 Time limit of prosecution
14 Prohibition on importation of certain goods
Power to require information in respect of imported goods bearing fraudulent marks
15 Imported goods bearing name or trade mark of Jamaican manufacturer or trader not to be sold unless accompanied by indication of origin
16 Contravention of section 15 constitutes an offence against this Act
17 Imported goods bearing Jamaican certification trade mark
18 Implied warranty on sale of marked goods
19 Cases in which the provisions of this Act as to false descriptions are not to apply
20 Saving provisions
21 False representation as to Royal Warrant
THE MERCHANDISE MARKS ACT
[Date of Commencement: 22nd May, 1888]
Law 35 of 1958.
Act 12 of 1985.
This Act may be cited as the Merchandise Marks Act.
(1) For the purposes of this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
[35/1958 s 2.]
"trade mark" has the meaning assigned to it by the Trade Marks Act;
"trade description" means the customs entry relating to imported goods, or any description, statement or any indication, direct or indirect-
(a) as to the number, quantity, measure, gauge or weight, of any goods or
(b) as to the standard of quality of any goods, according to a classification commonly used or recognised in the trade; or
(c) as to the fitness for purpose, strength, performance or behaviour of any goods; or
(d) as to the place or country in which any goods were made or produced; or
(e) as to the mode of manufacturing or producing any goods; or
(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 Act;
"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 with the meaning of this Act;
"goods" means any thing which is the subject of trade, manufacture or merchandise;
"imported goods" does not include
(a) goods which since the date of their importation have undergone in Jamaica any treatment or process resulting in a substantial change in the goods; or
(b) goods produced or manufactured in Jamaica which after exportation are brought back into Jamaica, including any such goods which have undergone outside of Jamaica any treatment or process not resulting in a substantial change in the goods,
"indication of origin" means a definite indication of the country in which the goods were manufactured or produced; the indication being given conspicuously;
"person'', "manufacturer", "dealer" or "trader" and "proprietor", include any body of persons corporate or unincorporate;
"name" includes any abbreviation of a name.
(2) 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.
(3) The provisions of this Act respecting the application of a false 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 of a person which-
(a) are not a trade mark or part of a trade mark; and
(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 authorised 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.
(4) Without prejudice to the generality of the definitions of "trade description" and "false trade description" contained in subsection (1), a trade description shall be deemed for the purposes of this Act to be a false trade description if it is calculated to be misunderstood as, or mistaken for, an indication as to the same or some other such matter which would be false or misleading in a material respect as regards. the goods to which the description is applied, and anything calculated to be misunderstood as, or mistaken for, an indication of any of those matters shall be deemed for those purposes to be a trade description.
(5) Notwithstanding anything contained in the definition of "false trade description" in subsection (1) no trade mark, within the meaning of the Trade Marks Act, or part of such a trade mark, shall by virtue of paragraphs (b) and (c) of subsection (1) and subsection (4) be treated as a false trade description in relation to any goods to which the trade mark is applied, if the following conditions are satisfied, that is to say-
(a) on the 16th October, 1957, the trade mark either is registered under the Trade Marks Act, or is in use to indicate a connection in the course of trade between those goods and the proprietor of the trade mark; and
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