No. 3.- Budd v. Lucas, 1891, 1 Q. B. 412, 413.

this Act is, for the first time, to be found the expression "trade description," which is treated as something distinguishable from trade-marks or other marks, and is defined to mean any description, statement, or other indication, direct or indirect," as to the quality or quantity of goods. Then the definition of the term "apply" in sect. 5 seems to suggest that it is not to be confined. to a physical application; for it provides that a person shall be deemed to apply a trade description to goods who (inter alia) "9 uses it" in any manner calculated to lead to the belief that the goods in connection with which it is used are described by that trade description." No doubt, the description must be used in connection with goods; but I think we should be cutting down the intention of the Act if we were to hold that the delivery of an invoice or other description of goods, at the time of, or immediately after, the delivery of the goods themselves, was not a use in connection with the goods within the meaning of the section. Our answer to the first question submitted to us must, therefore, be that the delivery of the invoice with the cask may have been an application of a false trade description. Whether it was so or not depends upon certain questions of fact which it is for the justices to decide.

Upon the second question, the justices were clearly wrong. There can be no doubt that the evidence tendered was admissible upon the issue of the intent to defraud.

With regard to the last question, all we can say is that in our opinion there is nothing in the present Act to alter the general rule of law that a master is not criminally responsible for the unauthorised acts of his servants. There are, no doubt, certain Acts of Parliament, such as the Licensing Acts, which do introduce an exception in that respect into the general rule; but this is not one of those Acts.

CHARLES, J. I am of the same opinion. To the question whether the delivery of the invoice along with the casks was an application of a false trade description within the meaning of the Act, we cannot, in the present state of the case, give a categori

cal answer. All that we can say is, that it may have [** 413] constituted the offence with which the respondent is charged. No doubt there was not any physical application of a trade description to the goods; but I do not think that

that is necessary. To my mind, it is clear from the language of sect. 5, sub-sect. 1 (d), that something more is contemplated than an actual physical connection. And if so, then I think that the delivery of the invoice with the goods might be a use of a false trade description of the goods delivered. With regard to the other questions, as to the admissibility of the evidence tendered, and the liability of the master for the acts of his servants, I agree with my Brother POLLOCK. The case will be remitted to the justices with these expressions of opinion. Case remitted to justices.

ENGLISH NOTES.

The material provisions of the Merchandise Marks Act, 1887, are the following. By sect. 1, sub-sect. 1, it is enacted:

"(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) applies any false trade description to goods; or

66

(e) disposes of or has in his possession any die, block, machine, or other instrument for the purpose of forging a trade-mark; or

66

"(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."

And by sub-sect. 2 of the same section

"Every person who sells, or exposes for, or has in his 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, unless he proves

"(a) That 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 trademark, mark, or trade description; and

"(b) That on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; or

"(c) That otherwise he acted innocently; be guilty of an offence against this Act."

No. 3.- - Budd v. Lucas.- Notes.

The objects of the Act are explained in sects. 3, 4, and 5, which define the meaning of certain expressions used in sect. 2 of the Act. The expression "trade-mark" means "a trade-mark registered in the register of trade-marks kept under the Patents, Designs, and Trade-Marks Act, 1883," and includes foreign or colonial trade-marks to which sect. 103 of that statute applies. "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, or (b) as to the place or country in which any goods were made or produced, or (c) as to the mode of manufacturing or producing any goods, or (d) as to the material of which any goods are composed, or (e) 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." The expression "false trade description" means

a trade

ex

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 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." And the provisions of the Act respecting a false trade description "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. And the same provisions are to 66 tend 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 bonâ fide carrying on business in connection with such goods." All these provisions are contained in sect. 3. Sect. 4 contains a definition of what shall be deemed a forgery of a trade-mark, but further than noting the provision that the defendant must prove the assent of the proprietor upon a prosecution for forging a trade-mark the section need not

be considered. The sect. 5 (1) enacts: "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 trademark 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." And in sub-sect. 2: "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." The only other sections to which it seems necessary to refer are sect. 6, which protects certain persons employed and acting in the ordinary course of their business and sects. 7 and 8, which refer exclusively to watches. Sect. 18 permits the continuance of the user of trade descriptions used at the passing of the Act, and sect. 19 (3) protects a servant bonâ fide acting in obedience to the instructions of his master.

The criminal liability of the master for the act of his servant in selling goods under a false trade description was established in Coppen v. Moore (No. 2), 1898, 2 Q. B. 306, 68 L. J. Q. B. 689. In the course of his judgment, which was concurred in by Sir FRANCIS Jeune, President of the Probate Division and Admiralty Division, the late Lord Justice CHITTY, and WRIGHT DARLING and CHANNELL, JJ., the late Lord RUSSELL, L. Ch. J., said: "The question, then, in this case, comes to be narrowed to the simple point, whether upon the true construction of the statute here in question the master was intended to be made criminally responsible for acts done by his servants in contravention of the Act, where such acts were done, as in this case, within the scope or in the course of their employment. In our judgment, it was clearly the intention of the Legislature to make the master criminally liable for such acts, unless he was able to rebut the prima facie presumption of guilt by one or other of the methods pointed out in the Act. . . . He might successfully meet the primâ facie case, if he is able, where the charge is under sub-sect. 1 of sect. 2, to prove that he acted without intent to defraud; or, where the charge is under sub-sect. 2 of sect. 2, if he is able to prove, (a) that he had taken all reasonable precautions against committing an offence against the act, and had no reason to suspect the genuineness of the trade description in question; and

(b) that on demand he had given full information; or (c) if he is able to prove that otherwise he had acted innocently. It seems clear that clauses (a) and (b) of sub-sect. 2 apply to cases where the goods in question are in the possession of the accused for sale or are sold with the forged trade-mark or false trade description already stamped upon them, or otherwise applied to them, and not to a case like the present, where the false trade description is applied upon the occasion and as part of the terms of sale; and in the latter case the accused must rely for his exculpation upon clause (c), namely, by showing that he had acted innocently."

In Coppen v. Moore (No. 1), 1898, 2 Q. B. 300, 68 L. J. Q. B. 689, it was said that a mere verbal representation does not amount to an application of a false trade description within the Act. This expression of opinion was unnecessary for the determination of the case, as there was a written invoice which brought the case within the principal case, but as the point was argued it cannot be regarded as a mere dictum. Handing two packets of tea in response to a demand of two half pounds of the article cannot support a conviction for applying to goods a false trade description of their weight. Langley v. Bombay Tea Co., 1900, 2 Q. B. 469, 69 L. J. Q. B. 752.

In Coppen v. Moore (No. 2), (supra cit.), it was said that magistrates might well hold that there was an absence of innocence in a man who sold American hams (which were the subject-matter of complaint) dressed so as to induce the public to believe that they had a different origin. In Christie v. Cooper, 1900, 2 Q. B. 522, 69 L. J. Q. B. 708, it was held that an auctioneer who had been warned that the trademark upon goods he was about to sell was not genuine, might yet be said to act innocently in subsequently selling the goods. In Kirshenboim v. Salmon and Gluckstein, Limited, 1899, 1 Q. B. 19, 67 L. J. Q. B. 601, the respondents were charged with selling cigarettes under a false trade description, namely, "guaranteed hand-made," the cigarettes were in fact machine-made, but were of as good a quality as hand-made cigarettes. The Court held that the magistrate ought to have convicted. As regards the offence under sect. 2, sub-sect. 2, of having in his possession for sale goods to which a false trade description is applied, it is no defence that there was no intent to defraud the immediate purchaser, and that he was not in fact deceived. Wood v. Burgress (1889), 24 Q. B. D. 162, 59 L. J. M. C. 11.

AMERICAN NOTES.

Although the Federal laws require notice to be affixed to articles sold, both as to patents and copyrights, they contain, either in their constitutional or unconstitutional provisions, no express directions as to affixing trade-marks.