1224

THE NEW ZEALAND GAZETTE.

[No. 67

Customs Memorandum respecting "The Merchandise
Marks Act, 1887."

Department of Trade and Customs,
Wellington, 4th December, 1889.

THE following memorandum by the Commissioners of
Customs in London is published for public information,
and, so far as the same may be applicable, for the guidance
of officers of Customs in dealing with goods under the pro-
visions of "The Patents, Designs and Trade-marks Act,
1889."

T. W. HISLOP,
(For the Commissioner of Trade and Customs.)

CUSTOMS MEMORANDUM RESPECTING "THE MERCHANDISE
MARKS ACT, 1887."

"THE Merchandise Marks Act, 1887," does not deal with
goods which are not marked or described in any manner at
all. But, if any "marks" or "descriptions" are applied to
goods, the Act requires that such marks and descriptions
shall not be of a misleading character, or what are called
in the Act "false trade descriptions."

The following methods of describing goods are amongst
those found to be frequently used by merchants, &c., and
which come within the category of "false trade descrip-
tions" within the meaning of the Act:-

1. The use generally of any language in describing goods
   which is not the language of the country in which the goods
   are produced, e.g., the English language on goods produced
   in Germany, Spanish on Dutch goods, French on Portu-
   guese produce, &c.

There is, however, no objection to the use of any language
for describing goods, whatever may be the country from
which they come, provided its use be accompanied in the
case of foreign goods described in the English language by
a statement that the goods are "made abroad," and, in the
case of goods imported from one foreign country and de-
scribed in the language of another, by a statement of the
country in which the goods are actually made or produced.
Thus, plums from Bosnia may be described in the French
language, provided the description is accompanied by the
qualifying statement "produce of Bosnia." This statement
or qualification should be as conspicuous as the French
language used in the instance in question; it should form
an actual part of the label or wrapper on which the descrip-
tion appears, and be equally indelibly applied, and it should
be used (as a rule) wherever the description is applied to
the goods. Moreover, the qualification should be in the
English language. If goods are described in the language
of the country of origin, and also in other languages, it is
held that such a use of the other languages does not convey
any special indication of the origin of the goods, nor destroy
the truthful description of the language of the country, pro-
vided there is no undue preponderance of print or otherwise
given to the other languages, nor anything in the nature
of the goods themselves to give such preponderance.

2. A more direct indication of origin is the use of the
   name of a place or country usually noted for excellence in
   any article on an article of the same description coming
   from some other place or country, e.g., port, sherry, or
   cognac from other places than Oporto, Xeres, and Cognac;
   cutlery, marked "Sheffield," imported from abroad; cigars,
   marked "Havana" and "Manilla," and not coming from
   Cuba or the Philippine Islands. Such descriptions must
   upon the importation of the goods be qualified in a similar
   manner to that stated under heading (1), e.g., wine described
   as "port" coming from Holland should have the description
   accompanied by the statement "produce of Holland," unless
   the importer can produce documentary evidence satisfactory
   to the Board of Customs that the goods are actually the
   produce of the places from which by the descriptions upon
   them they purport to come.

The names of such wines as those specified above on
labels upon bottles imported, say, from Germany are not
objected to provided the labels bear also a statement that
the wine is imported from Germany, or the name and
address of the wine merchants in Germany by whom the
wine has been bottled or prepared for the market.

3. The use of the name of a place out of the United
   Kingdom which is identical with or a colourable imitation
   of the name of a place in the United Kingdom. Such a
   name must, under section 16, subsection 4, of the Merchan-
   dise Marks Act, be accompanied by the name of the
   country in which the place is situated, otherwise it will be
   treated as the name of a British town, e.g., Boston must be
   followed by the letters "U.S.A.," Perth by "Western Aus-
   tralia," &c.

4. The use on foreign manufactured goods of any name or
   mark which is or purports to be the name or trade-mark of
   any manufacturer, dealer, or trader in the United Kingdom.
   In such case, the Act distinctly requires that the name or
   mark should be accompanied by a definite indication of the
   country in which the goods were made or produced, and this
   indication should be applied in a similar manner to that of
   the qualifying statement under the head (1).

In this respect a trade-mark on foreign manufactured
goods need not necessarily be one that is registered, but may
be any mark which indicates, or purports to indicate, that
the goods are those of a manufacturer, trader, or dealer in
the United Kingdom.

For the purposes of the Act in this respect a foreigner may
be a manufacturer, &c., within the United Kingdom if his
goods are sold at a known place or places therein, and are
known in the market as being purchased at one or more
places in this country. As regards initials of manufactu-
rers, &c., on foreign manufactured goods, they may purport
to be the name of such manufacturers if, in fact, the initials
are equivalent in the market to the name on the goods, and,
if so, they will require the qualifying indication.

Objection is not taken to the use of the words " patent,"
"trade-mark," "registered," and "copyright," as the
statutes contemplate that they should be so used on foreign
goods. But, if those words are untruly applied, the goods
are liable to seizure.

It is to be understood that any goods bearing a false trade
description which the officers of Customs would not be able
to detect without information may be stopped at the in-
stance of and upon formal information by persons who are
aware that such goods are falsely described.

Printed matter is included within the scope of the Mer-
chandise Marks Act, and, consequently, any such matter,
coloured or not, bearing any name of a British printer or
publisher, or any indication by language of being British
production, requires qualification. The qualification in the
case of a book may-similarly to the statutory requirement
as to imprint-be on the first or last leaf.

When qualification of a mark or description is required,
it should, as has been already stated, in strictness be re-
quired wherever and however many times the illegal mark
or description occurs on the goods, but in practice rigid ad-
herence to this requirement is waived, according to the facts
of each case, so as to avoid, as far as possible, needless repe-
titions where one or two qualifications would be sufficient to
meet the eye so as to cover at the same time several illegal
marks.

In cases where a trader places on his goods the names of
two or more places in different countries, he should add to
those names a statement of the actual country in which the
goods were made. For instance, if goods of Hungarian
origin are marked "Pesth" and "London," the word
"Pesth" will not, without indication of make, there oblite-
rate the illegal indication given by the word "London;"
and the fact of the trader having a place of business in each
of the countries will not alter this requirement.

Some trade descriptions are exempted from the Act, viz.,
such as, at the time of its passing, were lawfully and gene-
rally applied to goods of a particular class, or manufactured
by a particular method to indicate the particular class or
method; but, if these descriptions include the name of a
place or country, they must be clearly qualified by a state-
ment of where the goods are made.

There are also some descriptions which are not treated as
trade descriptions within the meaning of the Merchandise
Marks Act. For instance, the name of a port or place of
destination applied to packing-cases in which goods are
clearly not intended to be sold or exposed for sale does not
render the goods liable to detention, nor does the name
merely of a port of unshipment of goods, nor will inscrip-
tions applied to goods by means of labels or tickets, or ap-
plied to boxes, cartons, parcels, or other ultimate packages
containing goods, manifestly only for the purpose of dis-
tinguishing the goods for the convenience of dealers and
shopkeepers, and not specially intended to attract the eye of
the customer whenever the inscription consists simply of the
bare name of the goods, or indication of number, quan-
tity, size, and the like.

For instance, -

On hoisery-
" Hose."
"White cotton, size 10."

On textile fabrics-
"No. Quality. Colour. Dress. Yards."

On goloshes-
"1 doz. pairs men's 2nd quality, No. 7."

Goods bearing labels, tickets, &c., of this character only
are not to be detained, whatever may be the language in
which the inscriptions are printed or written.

It is to be understood that the last three paragraphs do
not apply to wording on the goods themselves, nor (with the
exception of the name of the port of destination on packing-
cases) to any wording which includes the name of a place or
country, the name of any trader, manufacturer, or dealer,
or a trade-mark.

Neither will trade descriptions, &c., on "coverings," or
other such things, including boxes, bottles, and the like, im-
ported alone and with the intention of being used as auxil-
iary means of carrying into the market goods really British,