Merchandise Marks Act, 1931

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Number 48 of 1931.


MERCHANDISE MARKS ACT, 1931.


ARRANGEMENT OF SECTIONS

PART I.

Preliminary.

Section

1.

Definitions and interpretation.

PART II.

Merchandise Marks Commission.

2.

Establishment of Merchandise Marks Commission.

3.

Regulations for proceedings before Commission.

4.

Powers of Commission.

5.

Remuneration and staff of Commission.

PART III.

Restriction on Sale Orders and Restriction on Importation Orders.

6.

Reference of applications to the Commission and fees on applications.

7.

Consideration of and report on applications and questions referred to Commission.

8.

Restriction on sale orders and restriction on importation orders.

9.

Contents of restriction orders.

10.

Application and construction of restriction orders.

11.

Exemption orders.

12.

Revocation and amendment of restriction orders.

13.

Notice of reference and evidence at inquiry.

14.

Presentation and notification of reports of Commission.

15.

Laying of orders before Houses of Oireachtas.

16.

Offences in relation to restriction on sale orders.

17.

Effect of restriction on importation orders.

18.

Prohibition of removal of indication of origin from imported goods.

19.

Prosecution of offences by certain local authorities.

PART IV.

Other Restrictions in Relation to Imported Goods.

20.

Sale of imported goods bearing name or trade mark of Saorstát Eireann manufacturer or trader or place name in Saorstát Eireann.

PART V.

False Representation in Connection with Goods not Produced or Manufactured in Saorstát Eireann.

21.

False representation in connection with goods not produced or manufactured in Saorstát Eireann.

PART VI.

Provisions in Relation to Offences.

22.

Statutory defences.

23.

Penalties for offences under this Act.

24.

Search warrant and additional provisions as to forfeiture.

25.

Disposal of forfeited goods.

26.

Costs of defence or prosecution.

27.

Time limit for prosecutions.

28.

Evidence.

PART VII.

Miscellaneous and General.

29.

Adaptation of the Principal Act and the Merchandise Marks Act, 1911.

30.

Prosecutions by Minister for Industry and Commerce.

31.

Prosecutions by Minister for Agriculture.

32.

Savings.

33.

Regulations.

34.

Expenses.

35.

Repeals.

36.

Short title and citation.

SCHEDULE.


Acts Referred to

Industrial and Commercial Property (Protection) Act, 1927

No. 16 of 1927

Agriculture Act, 1931

No. 8 of 1931

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Number 48 of 1931.


MERCHANDISE MARKS ACT, 1931.


AN ACT TO MAKE FURTHER AND BETTER PROVISION IN RELATION TO THE MARKING OF MERCHANDISE. [22nd December, 1931.]

BE IT ENACTED BY THE OIREACHTAS OF SAORST?T EIREANN AS FOLLOWS:—

PART I.

Preliminary.

Definitions and interpretation.

1.—(1) In this Act—

the expression “the Principal Act” means the Merchandise Marks Act, 1887;

the word “goods” has the same meaning as it has in the Principal Act;

the expression “indication of origin” when used in relation to imported goods means a word or words indicating that such goods were not produced or manufactured in Saorstát Eireann;

the word “form” when used in relation to an indication of origin includes the word or words to be used in such indication of origin.

(2) In this Act the expression “blend or mixture” does not include any blend or mixture produced by a process of manufacture from materials of different kinds.

(3) In Part III of this Act—

the expression “imported goods” does not include—

(a) goods produced or manufactured in Saorstát Eireann which after exportation were brought into Saorstát Eireann including any such goods which have undergone outside Saorstát Eireann any treatment or process not resulting in a substantial change in the goods.

(b) farm produce carried or driven by a farmer or his servants from Northern Ireland into Saorstát Eireann in the course of his business as a farmer,

the expression “sale” does not include—

(a) a sale of goods for consignment by the vendor to a person outside Saorstát Eireann, or

(b) a sale of second-hand goods, or

(c) the sale of any foodstuffs at any hotel or restaurant or other premises for consumption thereon,

and cognate words shall be construed accordingly.

(4) In Part IV of this Act—

the expression “imported goods” does not include—

(a) goods which since the date of their importation have undergone in Saorstát Eireann any treatment or process resulting in a substantial change in the goods;

(b) goods produced or manufactured in Saorstát Eireann which after exportation were brought into Saorstát Eireann including any such goods which have undergone outside Saorstát Eireann any treatment or process not resulting in a substantial change in the goods;

(c) farm produce carried or driven by a farmer or his servants from Northern Ireland into Saorstát Eireann in the course of his business as a farmer.

the expression “sale” does not include—

(a) a sale of goods for consignment by the vendor to a person outside Saorstát Eireann, or

(b) a sale of second-hand goods, or

(c) the sale of any foodstuffs which have undergone a process of cooking or preserving in Saorstát Eireann,

and cognate words shall be construed accordingly.

(5) For the purposes of this Act imported goods shall be deemed to have been manufactured in the country in which they last underwent before importation a substantial change by reason of any treatment or process.

PART II.

Merchandise marks commission.

Establishment of Merchandise Marks Commission.

2.—(1) As soon as conveniently may be after the passing of this Act, there shall be established a Commission (in this Act referred to as the Commission), which shall be styled the Merchandise Marks Commission, to fulfil the functions assigned to it by this Act.

(2) The Commission shall consist of three members, of whom one, who shall be chairman, shall be nominated by the Minister for Industry and Commerce, one shall be nominated by the Minister for Finance, and one shall be nominated by the Minister for Agriculture.

(3) Every member of the Commission shall hold office during the pleasure of the Minister by whom he is nominated.

Regulations for proceedings before Commission.

3.—The Commission shall make regulations for the governance of its proceedings and may by such regulations make provision for all or any of the following matters, that is to say:—

(a) the times and places of the sittings of the Commission;

(b) the persons to whom notice of the sittings of the Commission shall be given;

(c) the form and manner in which submissions shall be made and evidence given to the Commission, and in particular, whether such submissions and evidence shall be given viva voce or in writing;

(d) the attendance for viva voce examination or cross-examination of persons who have made submissions or given evidence in writing;

(e) the admission or exclusion of any person to or from the sittings of the Commission;

(f) such matters as appear to the Commission to be necessary or expedient for the proper conduct of its business.

Powers of Commission.

4.—(1) The Commission shall have all such powers, rights, and privileges for enforcing the attendance of witnesses and examining them on oath (which any member of the Commission is hereby authorised to administer) or otherwise, and for compelling the production of documents as are vested in the High Court, or a judge thereof in respect of the trial of an action, and a summons signed by any one or more members of the Commission shall be equivalent to and have the like effect as a formal process issued by the High Court for enforcing the attendance of witnesses and compelling the production of documents.

(2) If any person—

(a) on being duly summoned as a witness before the Commission makes default in attending, or

(b) being in attendance as a witness refuses to take an oath legally required by the Commission to be taken, or to produce any document in his power and control legally required by the Commission to be produced by him, or to answer any question to which the Commission may legally require an answer, or

(c) does any other thing which would, if the Commission were a court of justice having power to commit for contempt of court, be contempt of such court,

the Commission may certify the offence of that person under their hands to the High Court and that Court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the said court.

(3) A witness before the Commission shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

Remuneration and staff of Commission.

5.—(1) Any member of the Commission may, if the Minister for Finance so directs, be paid such remuneration as the said Minister shall determine.

(2) The Minister for Finance may appoint such and so many persons as he shall consider necessary to be officers of the Commission, and such persons shall hold office upon such terms and be remunerated at such rates and in such manner as the said Minister shall direct.

PART III.

Restriction on Sale Orders and Restriction on Importation Orders.

Reference of applications to the Commission and fees on applications.

6.—(1) Whenever an application is made to an Executive Minister by any person appearing to such Minister to be substantially representative of persons engaged in the production, manufacture or sale of goods of a particular class or description for—

(a) an order under this Part of this Act prohibiting the sale or exposure for sale of imported goods of that class or description unless such goods bear at the time of such sale or exposure an indication of origin; or

(b) an order under this Part of this Act prohibiting the importation of imported goods of that class or description unless such goods bear an indication of origin at the time of importation; or

(c) both such orders;

such Executive Minister may refer such application to the Commission for its report thereon.

(2) The Executive Council may, if and whenever they think fit so to do, refer to the Commission the question whether it is desirable to make in respect of goods of a particular class or description—

(a) an order such as is mentioned in paragraph (a) of the foregoing sub-section of this section; or

(b) an order such as is mentioned in paragraph (b) of the foregoing sub-section of this section; or

(c) both such orders.

(3) Whenever an application to an Executive Minister is referred by him under this section to the Commission, the persons by whom such application is made shall, as a condition precedent to the consideration of the application by the Commission, pay to the Commission in accordance with regulations to be made by the Minister for Finance such fee as the Commission, with the sanction of the said Minister shall fix, having regard to the length of time and the expense which in the opinion of the Commission will be involved in the consideration of the application.

(4) All fees paid to the Commission under this section shall be paid into or disposed for the benefit of the Exchequer by the Commission in such manner as the Minister for Finance shall direct.

Consideration of and report on applications and questions referred to Commission.

7.—The Commission shall consider every application or question referred to it by an Executive Minister or the Executive Council (as the case may be) under the immediately preceding section and shall report to the Executive Council in respect of the following matters, that is to say:—

(a) the desirability or otherwise of making the order or orders to which such application or question refers;

(b) if the Commission report in favour of making any such order—

(i) the form or alternative forms of an indication of origin for use in relation to the goods to which such application or question relates;

(ii) the manner in which an indication of origin should be borne by such goods;

(iii) such other matters arising out of the application or question as the Commission may be requested to report on by such Executive Minister or the Executive Council (as the case may be).

Restriction on sale orders and restriction on importation orders.

8.—(1) If, after consideration of a report of the Commission in relation to goods of a particular class or description, the Executive Council are of opinion that it is desirable that imported goods of that class or description should at the time of sale or exposure for sale bear an indication of origin, the Executive Council may, under and in accordance with this Act, make an order (in this Act referred to as a restriction on sale order) prohibiting the sale or exposure for sale of goods of that class or description unless such goods bear at the time of such sale or exposure an indication of origin in the form specified in such order.

(2) If, after consideration of a report of the Commission in relation to goods of a particular class or description, the Executive Council are of opinion that it is desirable that imported goods of that class or description should bear an indication of origin at the time of importation, the Executive Council may (without prejudice to their power to make a restriction on sale order in relation to imported goods of that class or description) make, under and in accordance with this Act, an order (in this Act referred to as a restriction on importation order) prohibiting the importation of goods of that class or description unless they bear at the time of importation an indication of origin in the form specified in such order.

(3) In this Act the expression “restriction order” shall be construed as equivalent to the expression “a restriction on sale order or a restriction on importation order.”

Contents of restriction orders.

9.—(1) Every restriction order made in relation to goods of a particular class or description shall specify the following things, that is to say:—

(a) at least one form of an indication of origin to be borne by such goods;

(b) the manner in which such indication of origin is to be borne by such goods;

(c) the date on which such order is to come into force;

(d) in the case of a restriction on sale order, whether the goods are to bear an indication of origin at the time of exposure for sale wholesale.

(2) A restriction order may specify several forms of indication of origin.

(3) A restriction order made in relation to goods of a particular class or description may provide that such order shall extend to blends or mixtures consisting of or containing those goods.

(4) A restriction order made in relation to goods of a particular class or description may provide that such order shall, subject to such terms and conditions as may be stated in such order, extend to samples of such goods.

(5) A restriction order made in relation to goods of a particular class or description may contain such provisions as the Executive Council think fit in respect of such goods when in transit or in bond in Saorstát Eireann.

(6) In addition to the matters required or permitted by this section, every restriction order may contain such other provisions as appear to the Executive Council necessary or expedient for giving effect to the prohibition contained in such order.

Application and construction of restriction orders.

10.—(1) A restriction order shall not extend to blends or mixtures consisting of or containing goods to which such order applies unless such order expressly provides that it shall so extend.

(2) A restriction order shall not extend to samples of the goods to which such order applies unless such order expressly provides that it shall so extend.

(3) Where goods to which a restriction order applies form part of other goods to which a restriction order does not apply but so retain their original character that an indication of origin can reasonably be applied to them such order shall apply to such first mentioned goods as if they were separate from the goods of which they form part.

(4) A restriction on sale order shall not, unless the order provides that the goods to which such order applies shall bear an indication of origin at the time of exposure for sale wholesale, extend to the case of the exposure for sale wholesale by a person who is a wholesale dealer.

(5) Where a restriction order specifies several forms of indication of origin, references in such order and in this Act to an indication of origin in the form specified in such order shall be construed as referring to an indication of origin in any one of such forms.

Exemption orders.

11.—If, where a restriction order has been made with respect to goods, it is shown to the satisfaction of the Executive Council by persons appearing to have a substantial interest in the matter that the application of the provisions of such order to any particular class or description of those goods has caused or is likely to cause injury or hardship to those persons, or any of them, the Executive Council may make an order (in this Part of this Act referred to as an exemption order) exempting such goods of that class or description from such restriction order, and in that case while such exemption order is in force such restriction order shall cease to have effect in relation to such class or description of goods.

(2) Whenever an exemption order is made notice of the making thereof shall be published in the Iris Oifigiúil and in such other manner as the Executive Council may deem suitable.

(3) Whenever an exemption order is made the Executive Council shall refer to the Commission for their consideration the question whether the restriction order to which the exemption order relates should be amended either in accordance with the terms of the exemption order or otherwise with respect to the goods the subject of such exemption order and the Commission shall report to the Executive Council on such question.

(4) The Executive Council may at any time revoke an exemption order.

Revocation and amendment of restriction orders.

12.—(1) Subject to the provisions of this section, the Executive Council may at any time revoke or amend a restriction order.

(2) Where the Executive Council proposes to revoke or amend a restriction order, they shall, unless the proposed revocation or amendment has been referred to the Commission in pursuance of the immediately preceding section, first refer to the question of the proposed revocation or amendment to the Commission who shall report thereon.

(3) The Executive Council shall not revoke or amend a restriction order until they have considered the report of the Commission in relation to the proposed revocation or amendment.

Notice of reference and evidence at inquiry.

13.—(1) Whenever a reference is made under this Act by an Executive Minister or the Executive Council to the Commission, the Commission shall cause notice of such reference and the date and place of the holding of the inquiry in pursuance of such reference to be published in the Iris Oifigiúil and in such other manner as it may think suitable, and no such inquiry shall be begun by the Commission until the expiration of fourteen days after the date of such publication in the Iris Oifigiúil.

(2) When holding any such inquiry the Commission shall hear every person who so desires to be heard and appears to the Commission to be substantially interested in the subject matter of such inquiry and shall receive and consider any evidence tendered by such person.

Presentation and notification of reports of Commission.

14.—(1) Every report made by the Commission under this Act shall be laid upon the Tables of both Houses of the Oireachtas.

(2) The Executive Council shall cause notice of the making of every report made by the Commission to be published in the Iris Oifigiúil as soon as may be after the making of such report.

Laying of orders before Houses of Oireachtas.

15.—Every restriction order made by the Executive Council under this Act shall be laid before each House of the Oireachtas, as soon as may be after it is made, and if either House within the next subsequent twenty-one days on which such House has sat after such order is laid before it passes a resolution annulling such order, such order shall be annulled accordingly but without prejudice to the validity of anything previously done under such order.

Offences in relation to restriction on sale orders.

16.—(1) If any person acts in contravention of or fails to comply with any restriction on sale order for the time being in force he shall, subject to the provisions of this Act relating to statutory defences, be guilty of an offence under this Act and shall be punishable accordingly.

(2) If any person advertises or offers for sale as being goods of a particular brand or make or otherwise under a specific designation, whether by means of an illustration or by means of any written matter, any imported goods of a class to which a restriction on sale order for the time being in force applies he shall, if he does not include in the advertisement or offer an indication of origin in the form specified in such order, and subject to the provisions of this Act relating to statutory defences, be guilty of an offence under this Act and shall be punishable accordingly.

This sub-section shall not apply in the case of any advertisement, made issued or published before the date on which the said restriction on sale order came into force.

Effect of restriction on importation orders.

17.—(1) Whenever a restriction on importation order in relation to imported goods of a particular class or description is for the time being in force, such goods shall, unless such goods bear in the manner prescribed by such order at the time of importation an indication of origin in the form specified in such order, be deemed to be goods which are prohibited to be imported by virtue of section 16 of the Principal Act, and the said section as amended by the Merchandise Marks Act, 1911 , shall apply in respect of such goods accordingly.

(2) Where the Revenue Commissioners are satisfied that any goods the importation of which is prohibited by virtue of the foregoing sub-section are goods imported for export after transit through Saorstát Eireann or by way of transhipment or are goods declared on importation to be for re-exportation, the Revenue Commissioners may, subject to compliance with such conditions as to security for the re-exportation of such goods as they may think fit to impose, permit such goods to be imported.

(3) Nothing in this section shall be taken to be in derogation of anything contained in section 16 of the Principal Act.

Prohibition of removal of indication of origin from imported goods.

18.—(1) Every person who removes, alters or obliterates an indication of origin which in compliance with a restriction order was borne by any goods at the time of their importation or exposure for sale wholesale shall, unless he satisfies the court that such removal alteration or obliteration was not for the purpose of concealing the origin of the goods at the time of their sale or exposure for sale, be guilty of an offence under this Act and shall be punishable accordingly.

(2) The provisions of this Act relating to statutory defences shall not apply in the case of an act which is by virtue of this section, an offence under this Act.

Prosecution of offences by certain local authorities.

19.—(1) Every offence under this Act mentioned in this Part of the Act may, in so far as the same relates to any imported goods being foodstuffs, be prosecuted by or at the suit of an authorised local authority as prosecutor.

(2) Any duly authorised officer of an authorised local authority shall be entitled (subject to the production by him of his authority in writing as such authorised officer) at all reasonable times to enter any premises on which he has reason to believe there are kept for sale any imported goods being foodstuffs to which a restriction on sale order applies and on paying or making tender of payments therefor take samples of any goods which appear to him to be such imported foodstuffs.

(3) It shall be the duty of a duly authorised officer of an authorised local authority who in exercise of the powers conferred on him by this section takes any samples—

(a) forthwith to notify the person on whose premises such sample is taken or his agent that such sample is taken in pursuance of this section, and

(b) if so required by such person or agent at the time of giving such notification, to select a second like sample or divide the sample taken by him into two parts, and to mark and seal and leave with such person or agent either the second sample or one part of the divided sample.

(4) Every person who obstructs or impedes any duly authorised officer of an authorised local authority in exercise of any of the powers conferred on him by this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.

(5) The provisions of this Act relating to statutory defences shall not apply in the case of an offence under this section.

(6) Any expenses incurred by an authorised local authority under this section shall be defrayed in the same manner as expenses incurred by such authority in executing the provisions of the Sale of Food and Drugs Acts, 1875 to 1907.

(7) In this section the expression “authorised local authority” means a local authority authorised to appoint an analyst for the purposes of the Sale of Food and Drugs Acts, 1875 to 1907.

PART IV.

Other restrictions in relation to imported goods.

Sale of imported goods bearing name or trade mark of Saorstát Eireann manufacturer or trader or place name in Saorstát Eireann.

20.—(1) It shall not be lawful for any person to sell or expose for sale either retail or wholesale or to distribute by way of advertisement (whether such advertisement relates to the goods distributed or to other goods) any imported goods to which there is applied within the meaning of section 5 of the Principal Act, either—

(a) the name of a manufacturer, trader, or dealer in Saorstát Eireann; or

(b) the trade mark of any such person as is mentioned in the foregoing paragraph or a mark, emblem or device so closely resembling such trade mark as to be calculated to deceive; or

(c) a name so closely resembling the name of a manufacturer, trader, or dealer in Saorstát Eireann as to be calculated to deceive; or

(d) the name of any place, district or area in Saorstát Eireann;

unless such name, trade mark, mark, emblem, or device is accompanied, in a manner not less conspicuous than the manner in which such name, trade mark, mark, emblem, or device is so applied, by a definite indication of origin of the country in which such goods were produced or manufactured.

(2) The Minister for Industry and Commerce may, at any time after the passing of this Act, by order exempt from the provisions of this section goods of any particular class or description or goods sold under any particular description, if he is satisfied that, having regard to the special circumstances of the trade in such goods, such exemption is desirable and would not materially prejudice public interests in Saorstát Eireann.

(3) The following provisions shall have effect in relation to blends or mixtures consisting of or containing imported goods of a particular class or description, that is to say:—

(a) the Minister for Industry and Commerce may at any time after the passing of this Act and from time to time by order do any of the following things, that is to say:—

(i) apply the provisions of sub-section (1) of this section to such blends or mixtures, or

(ii) revoke or amend any order previously made by him under this paragraph;

(b) the provisions of sub-section (1) of this section shall not extend to such blends or mixtures unless an order made by the Minister under this sub-section applying the said provisions to such blends or mixtures is for the time being in force.

(4) In this section the expression “trade mark” means a mark (whether registered or not registered under the Industrial and Commercial Property (Protection) Act, 1927 (No. 16 of 1927) as a trade mark or as a design) which is used upon or in connection with goods for the purpose of indicating that they are the goods of the proprietor of the mark by virtue of manufacture, selection, certification, dealing with, or offering for sale.

(5) The following provisions shall have effect in relation to the coming into force of this section, that is to say:—

(a) in this sub-section the expression “the appointed day” means the day next following the expiration of six months from the passing of this Act;

(b) subject to the provisions of the next succeeding paragraph of this sub-section this section shall come into force on the appointed day;

(c) the Minister for Industry and Commerce may, at any time after the passing of this Act and before the appointed day, by order made in relation to imported goods of a particular class or description declare that this section shall, so far as it relates to imported goods of that class or description, come into force on such day (not being earlier than the date of such order or less than seven days after such date or later than the appointed day) as may be specified in that behalf in such order, and whenever any such order is made this section shall, in relation to imported goods of the class or description to which such order relates, come into force on the day specified in that behalf in such order;

(d) every order made under this sub-section shall be published in the Iris Oifigiúil as soon as may be after it is made.

(6) Every person who acts in contravention of this section shall, subject to the provisions of this Act relating to statutory defences, be guilty of an offence under this Act and shall be punishable accordingly.

(7) Section 9 of the Principal Act shall apply in respect of any proceedings for an act which is a contravention of this section.

(8) Nothing in this section shall be construed as rendering it lawful to sell or expose for sale any imported goods to which a restriction on sale order for the time being in force applies in contravention of such order.

(9) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such order is laid before it annulling such order such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.

PART V.

False Representation in Connection with Goods not Produced or Manufactured in Saorstat Eireann.

False representation in connection with goods not produced or manufactured in Saorstát Eireann.

21.—(1) Every person who in connection with or for the purposes of the sale retail or wholesale of any goods not produced or manufactured in Saorstát Eireann makes any representation which is false in any material respect that such goods were produced or manufactured in Saorstát Eireann shall, unless he proves that he acted without intent to defraud, be guilty of an offence under this Act and shall be punishable accordingly.

(2) In this section the word “representation” when used in relation to goods means any representation, direct or indirect, and whether verbal or in writing, and if in writing, whether used in any advertisement, or in any catalogue, bill-head or other document relating to the goods or implied in the use of any trade name or style.

(3) Nothing in this section shall be construed as limiting the operation of paragraph (d) of sub-section (1) of section 2 of the Principal Act.

(4) The provisions of this Act relating to statutory defences shall not apply in the case of an act which is, by virtue of this section, an offence under this Act.

PART VI.

Provisions in relation to offences.

Statutory defences.

22.—(1) Save as otherwise provided by this Act, where a person is charged with having committed an offence under this Act it shall be a good defence to such charge for such person to prove—

(a) (i) that having taken all reasonable precautions against committing such offence he had at the time of the commission of the acts alleged to constitute such offence no reason to suspect that the goods in respect of which such offence is charged were goods to which the provisions of this Act relating to the sale of imported goods bearing name or trade mark of Saorstát Eireann manufacturer or trader, or place name in Saorstát Eireann or, a restriction on sale order applied;

and

(ii) that on a demand made by or on behalf of the prosecutor he gave all information in his power with respect to the persons from whom he obtained the goods;

or

(b) that otherwise he had acted innocently.

(2) Save as otherwise provided by this Act, where a person being an employer or principal is charged with having committed an offence under this Act it shall be a good defence to such charge for such person to prove—

(a) that he used due diligence to prevent the commission of the acts alleged to constitute an offence; and

(b) that the acts alleged to constitute such offence were not done by him personally; and

(c) that the said acts were done without his consent, connivance or wilful default; and

(d) that on service of the summons on him he gave to the prosecutor all information in his power with respect to the person who did the said acts.

(3) Save as otherwise provided by this Act where a person being a servant or employee is charged with having committed an offence under this Act it shall be a good defence to such charge for such person to prove—

(a) that he was in the employment of another person (in this sub-section referred to as the employer);

and

(b) that the acts alleged to constitute such offence were committed by him in the course of and for the purposes of such employment;

and

(c) that the said acts were committed by him in obedience to the express orders of the employer;

and

(d) that on service of the summons on him he gave all information in his power with respect to the matters mentioned in the foregoing paragraphs.

(4) Save as otherwise provided by this Act where a person being a wholesale dealer is charged with having committed an offence under this Act in relation to the sale of any goods it shall be a good defence to such charge for such person to prove—

(a) that such sale was a sale wholesale; and

(b) that the goods were sold to the purchaser on an undertaking in writing that they would be exported or re-sold for exportation to a place outside Saorstát Eireann.

Any document containing an undertaking to the above effect shall, if it purports to be signed by the purchaser and specifies the usual business address of the purchaser, on production thereof be prima facie evidence of such undertaking.

Penalties for offences under this Act.

23.—Every person guilty of an offence under this Act shall be liable on summary conviction thereof, in the case of a first offence to a fine not exceeding five pounds, and in the case of a second or any subsequent offence to a fine not exceeding twenty pounds, and the Court may, in any case order the goods in relation to which the offence was committed to be forfeited.

Search warrant and additional provisions as to forfeiture.

24.—(1) Where upon information of an offence under this Act a Justice of the District Court has issued either a summons requiring the defendant charged by such information to appear to answer to the same, or a warrant for the arrest of such defendant, and either the said Justice on or after issuing the summons or warrant, or any other Justice of the District Court, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which such offence has been committed are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such Justice may issue a warrant under his hand by virtue of which it shall be lawful for any member of the Gárda Síochána named or referred to in the warrant, to enter such house, premises or place at any reasonable time by day, and to search there for and seize and take away those goods or things, and any goods or things seized under any such warrant shall be brought before a Justice of the District Court for the purpose of its being determined whether the same are or are not liable to forfeiture under this Act.

(2) If the owner of any goods or things which, if the owner thereof had been convicted of an offence under this Act would be liable to forfeiture under this Act, is unknown or cannot be found, any information or complaint may be laid for the purpose only of enforcing such forfeiture, and a Justice of the District Court may cause notice to be advertised stating that unless cause is shown to the contrary at the time and place named in the notice, such goods or things will be forfeited, and at such time and place, a Justice of the District Court, unless the owner or any person on his behalf, or other person interested in such goods or things, shows cause to the contrary, may order such goods or things or any of them to be forfeited.

Disposal of forfeited goods.

25.—Where any goods or things are forfeited under this Act, such goods or things may be destroyed or otherwise disposed of in such manner as the Court by whom the same are forfeited may direct, and the Court may, out of the proceeds which may be realised by the disposition of such goods (all trade marks and trade descriptions being first obliterated) award to any innocent party any loss he may have innocently sustained in dealing with such goods.

Costs of defence or prosecution.

26.—On any prosecution for an offence under this Act the Court may order costs to be paid to the defendant by the prosecutor, or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.

Time limit for prosecutions.

27.—Notwithstanding anything contained in section 10 of the Petty Sessions (Ireland) Act, 1851 , proceedings for an offence under this Act may be commenced within whichever of the following periods is the less, that is to say, a period of three years next after the commission of the offence and a period of one year next after the first discovery of the offence by the prosecutor.

Evidence.

28.—In any prosecution for any offence under this Act in relation to imported goods, evidence of the port of shipment shall be prima facie evidence of the place or country in which the goods were made or produced.

PART VII.

Miscellaneous and general.

Adaptation of the Principal Act and the Merchandise Marks Act, 1911.

29.—(1) Every mention or reference to the United Kingdom in the Principal Act and the Merchandise Marks Act, 1911 , shall be construed and take effect as a mention of or reference to Saorstát Eireann.

(2) The reference to Her Majesty in paragraph (iii.) of sub-section (3) of section 2 of the Principal Act shall be construed and take effect as a reference to the State.

(3) The reference to goods of foreign manufacture in sub-section (1) of section 16 of the Principal Act shall be construed and take effect as a reference to goods manufactured outside Saorstát Eireann.

(4) Every mention of or reference to the Commissioners of Customs in section 16 of the Principal Act shall be construed and take effect as a mention of or reference to the Revenue Commissioners.

(5) The reference to the Commissioners of Her Majesty's Treasury in sub-section (6) of section 16 of the Principal Act shall be construed and take effect as a reference to the Minister for Finance.

(6) The reference to the London Gazette in sub-section (8) of section 16 of the Principal Act shall be construed and take effect as a reference to the Iris Oifigiúil.

(7) The reference to publication in the Board of Trade Journal in sub-section (8) of section 16 of the Principal Act shall cease to have effect.

(8) Every reference to the Commissioners of Customs and Excise in the Merchandise Marks Act, 1911 , shall be construed and take effect as a reference to the Revenue Commissioners.

Prosecutions by Minister for Industry and Commerce.

30.—(1) The Minister for Industry and Commerce may, subject to the prescribed conditions being complied with, undertake as prosecutor the prosecution of any offence under the Principal Act or any offence under this Act in cases appearing to him to affect the general interests of the country or of a section of the community, or of a trade, or of an industry.

(2) In this section the expression “prescribed” means prescribed by regulations made by the Minister for Industry and Commerce under this section.

Prosecutions by Minister for Agriculture.

31.—(1) The Minister for Agriculture may, subject to the prescribed conditions being complied with, undertake as prosecutor the prosecution of any offence under the Principal Act or any offence under this Act in cases which appear to him to relate to agricultural produce or to the produce of any other rural industries and to affect the general interests of the country or a section of the community or of a trade or of an industry.

(2) In this section the expression “rural industries” means the rural industries mentioned in section 2 of the Agriculture Act, 1931 (No. 8 of 1931).

(3) In this section the word “prescribed” means prescribed by regulations made by the Minister for Agriculture under this section.

(4) Nothing in this section shall operate to limit the powers conferred on the Minister for Industry and Commerce by the immediately preceding section, in so far as those powers are concurrent with the powers conferred on the Minister for Agriculture by this section, and nothing in this section or the immediately preceding section shall operate to affect the power of any person (other than the said Ministers) to prosecute in respect of any offences under the Principal Act or any offence under this Act.

Savings.

32.—(1) This Act shall not exempt any person from any action, suit, or other proceeding which might, but for the provisions of this Act, be brought against him.

(2) Nothing in this Act shall entitle any person to refuse to make a complete discovery, or to answer any question or interrogatory in any action, but such discovery or answer shall not be admissible in evidence against such person in any prosecution for an offence under this Act.

Regulations.

33.—Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it annulling such regulation such regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under such regulation.

Expenses.

34.—All expenses of carrying this Act into execution shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Repeals.

35.—The enactments specified in the Schedule to this Act are hereby repealed to the extent mentioned in the third column of that Schedule.

Short title and citation.

36.—This Act may be cited as the Merchandise Marks Act, 1931, and the Merchandise Marks Act, 1887 and 1891, the Merchandise Marks Act, 1911 , and this Act may be cited together as the Merchandise Marks Acts, 1887 to 1931.

SCHEDULE.

ENACTMENTS REPEALED.

Session and Chapter or Number and Year

Short Title

Extent of Repeal

54 & 55 Vic. c. 15.

Merchandise Marks Act, 1891 .

Section 2.

9 Edw. VII. c. 24.

Merchandise Marks (Ireland) Act, 1909.

The whole Act.

No. 8 of 1931.

Agriculture Act, 1931 .

In the First Schedule, the words “The Merchandise Marks (Ireland) Act, 1909.”