Trade Marks Act 1863 (SA)

ANNO VICESIMO SEXTO ET VICESIMO SEPTIMO

A. D. 1863.

No. 20.

An A c t to p4euen.t the Fraudulent Marking o f Merchandize, to p~ovide for the Registration of Zkade Marks, a d for oth"er purposes.

[Assented to, 12th Noven~bei*, 1863.1

HEREAS it is expedient to prevent the Fraudulent Marking ~ ~ e a ~ n ~ -.

W of Merchandize, and the sale of Mcrchandize falsely marked	for the purpose of fraud, and to provide for the Registration of
Trade Marks-Be it therefow Enacted by the Governor-in-Chief of the Province of South L4ustralia, with thc advice and consent of the Legislative Council and IIouse of Assembly of the said Province, in this present Parliament assembled, as follows:
1. In the construction of this Act, the word " Person " shall include any person, whether n subject of IIer Majesty or not, and any body corporate or body of the like nature, and also any company, associa- tion, or society of persons, whether the members thereof be subjects of Her Majesty or not, or some of such persons subjects of Her Majesty and some of them not, and whether such body corporate, body of the like nature, company, association, or society, be established to carry on business withir~ the limits of the said Province or elsewhere, or partly within the limits of the said Pro- vince and partly elsewhere; the word " Mark " fihall include any name, signature, word, letter, device, emblem, figure, sign, seal, stamp, diaiagra~n, label, ticket, or other mark of any other description; and the expression "Trade mark " shall include any and every such name, signature, word, letter, device, emblem, figure, sign, seal, stamp, diagram, label, ticket, or other mark as aforesaid, lawfully used by any person to denote any chattel or any article of trade, Constructiond w o r h

4 A

manufacture,

\ -&

e I* *g \ v < %4+ I 8 S

260 26" & 270 VICTOICIB, No. 20.

Tru& Marks Act.-1863.

manufacture, or merchandize, to be an article or thing of the manu- factnre, workmansEp, o r production, or merchandize of such person, or to be an article or thing of any peculiar m particular description, made or sold by such person.

Registrar to be ap.

pointod

2. The Governor, with the advice and consent of the Executive Council, may appoint some person to be the Registrar of Trade Marks, and an office to be the placc of registration, for the purposes of this Act.

Mode *fw+mriona

3. Any person desirous of registering o trade mark shall deliver to the Registrar two coples of the trade mark" proposed to be re@-

tered; and shall at the same time pay to the Registrar, for the public

uses of the said Province, a sum of Two Pounds and Two Shillings;

and shall .also state in writing the nature of the article to which it is proposed that such trade mark shall apply; and thc Regis- trar shall, withil-L fourteen days of the payment of such fee, publish in the Government Gazette a notice, statina the name of ihe ap- plicant, a description of the trade mark,' as nearly as may be, and the nature of the article to which it is proposed that such trade mark shall apply; and, after the expiration of fourteen days from the publication aforesaid, the Registrar shall, unless it be shown, to the satisfaction of the X.egistrar, that such trade mark has been previously registered, or that some other person is entitled to such trade' mark, or that such trzde mark is so like some other trade mark that it may be mistaken for the same, issue to the applicant a pro- visional certificate, setting forth that such tradc mark to be described

in such certificate has been duly registered; and such certificate shall,

subject to the provisions hereinafter contained, continue in force for

twelve calendar months.

pr0Y'40n" CCrti''*te

may be made abdhte. 4. Any person entitled to a provisional certificate as hereinbefore

provided miq, on payment: to the Registrar, for the public uses

of the said Provincc, of the sum of Three Pounds Three Shillings,

apply to have such pro\-isional certificate made absolute; and unless

shown to the satisfaction of the Rcgistrar that the person so ap- plying is not entitled to have such certificate granted, or that such trade mark is so like some othcr tradc mark that it may bc mis- taken for the same, the Registrar shall issue a ccrtificate, setting forth that the person named in such certificate is entitled to the use of the trade mark to be described in such certificate; and such last-mentioned certificate shall continue in force for fourteen years.

it sllall, within the said period of twelve calendar months, be

Register to be kept

and open to public	5. The Registrar shall keep a proper register of all certificates issued, and of all. acts clone by him in pursuance of this Act; and such register shall be open to the inspection of any person during office hours, on payment, for the pttbli6 uses of the said Province, of the sum of Sixpence.
inspection.

Certificate me b?

transferred a K olly or 6. Any certificate may be transferred, either wholly or in part, by

in part. - any

26' & 27" VICTORIB, No. 26:

Trade Marks Act.-1863.

any document in writing signed by the transferor; provided that no transfer shall be valid against thc person named in such certificate until after such transfer sllall have been duly registered; and the Registrar is required to register such transfer on payment, for the pub- lic uses of the said Province, of the snnr of Ten Shillings and Sixpence.

7. The registration of any trade mark shall not confer any patent Registratiou to e x t e d to trade mark only,

right over or any sole right to manufacture any article to which it is

my

proposed to apply such trade mark, but the certificate of the regis- w k n t right.

tration of any trade mark shall be a. proof of the right of the person

narncd in such certificate or of the registered transferee of any trade

mark to use such trade mark, except in case of any suit instituted to

try the right of any person to any provisional certificate, and

during the said period of twelve calencldr months.

8. Every person who with intent to defraud or to enable another Forging a trodemark,

to defraud any person, shall forge or counterfeit, or cause or procure ~ ~ ~ ~ ~ ~ " m p, $ f ~ $ t h

to be forged or counterfeited any trade mark, or shall apply or intent to defmud, a	cause or procure to be applicd any trade mark, or fogell or coun- misdemeanor.
teifeited trade mark to any chattel or articlc not being the manu-
facture, work~nanship, pro&ction, or merchandize o f a n y person
denoted or intended to be denoted by such trade mark, or denoted
or intended to be denoted by such forged or counterfeited trade
mark, or not being the manufjcture, workmanship, production, or
merchandize of any pcrson whose trade mark shall be so forged or
counterfeited, or shall apply or cause or procure to be applied any
trade mark, or any forged or counterfeited trade mark to any chattel .
or article not being the particular or peculiar description of manu- facture, workmanship, pmduction, or merchandize denoted or in- tended to be denoted by such trade mark, or by such furgdd or coun- terfeited trade mark, shall be guilty of a misdemeanor; and every per- son so corrllnitting a misdemeanor shall forfeit to Her Majesty every chattel and article belonging to such person to which hc shall have so ~mlawfully applied or caused or procured to bc applied any such
trade mark, or forged or counterfeited trade mark as aforesaid; and
every instrument d thc possession or pomcr of such person, and by means of which any such trade mark, or fcirged or counterfeited trade mark as aforesaid, shall have been so applied, any, and every instrument in the possession or power of such person for applying any such trade mark, or forged or countcrfcited. trade mark n i aforesaid, shall be forfeited to Her*Majesty; and the ( lout before which any such rnis- clernemor sllall be tried, may order such forfeited articles as aforesaid to be destroyed or otherwise disposed of as such Court shall think fit.

9. Every person who, with intent to defraud any person, sllall -Wring a f ~ ( ~ d trade mark to m y

apply, or cause, or procure to he applied, any trade mark, or any *see], case, wrapper,

forged or countrrfcitcd trade mark to any rask, bottle, stopper, f:; ~ ~ ~ ~ ~ ~ O; " d, ,,

vessel, case, cover, wrapper, band, reel, ticket, label, or other thing, or intended to btr

in or on, or with which any chattel or article shall be intended to	a "isdemeanor.
be sold, or shall be sold, or uttered, or exposed for sale, or intended
for any purpose of trade or manufacture. or shall enclose or place

..

any

26O & 2i0 VICTORIX, No. 20.

Trade 2lfurks Act.-1863,

any chattel or article to be enclosed or placed in, upon, under, or

with any cask, bottle, stopper, vessel, case, cover, wrapper, band,

reel, ticket, label, or other thing to which any trade mark sball have been falsely applied, or. to which m y forged, or counterfeited trade mark shall have been applied, or shall apply, or attach, or cause or procure to be applied or attached to any chattel or article, any case, cover, reel, ticket, kdbel, or other thing to which any trnde mark ghall have been falsely applied, or to wllich any forged or counter- fcited trade mark shall have been applied, or shall enclose, place, or attach any chattel or article to be enclosed, placed, or attached in, upon, under, with, or to any cask, bottle-stopper, bottle, vessel, casc, cover, wrapper, band, rccl, ticket, label, or other thing having thereon any tmdc mmk of any other person, shall be guilty of a rnisdemeanor; and cvery person so committing a niisdemeanor shall also fofeit to Her Majesty every such chattel and article, and also every such cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing, as aforesaid, in the possession or power of such person; and cvery other similar cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing made to be used in like manner as afores-aid, and cvery instrument in the possession or power of such person, and by means of which any such trade mark, or forged, or counterfeited track mark as afore- said, shall be forfeited to 3Tcr Majesty; and the Court before which any swh rnisdemcmor %hall bc tried, may order such fol-feited articles as aforesaid to be destroyed, or othcrwise disposed of, as such Court shall think fit.

Seliino ~ ~ f o w J e e

or a& false marks. 10. Every person who shall sell, utter, or cxposc, either for sale or penelty cqualtovalue for any purpose of trade or manufacture, or cause or procure to be

of and a sold, uttered, or exposed fur sale, or other pu~poscs as aforesaid, any	Bum not excueding
F ~ v c P o u ~ ~ s, ~ o ~ ~ ~ ? s ~ chattel or article, together with any forged or counterfeited trade

Ten shilling8*	mark, which he shall kuow to be forged or counterfcited; or, toge- ther with the trnde mark of any other person applied or uscd falscly or wrongfully, or without proper authority or excuse, knowing such
trade mark of another person to have bcen so applied or uscd as aforesaid; and that whether any such trade mark, or f q e d or coun- terfeited trade mark m aforesaid, togothm. with ally such cht te l or
article, shall be sold, uttered, or exposed for sale, or other purpose as aforesaid, shall be in, upon, about, or with such chattel or article, or in, upon, about, 01- with any cask, bottle, stopper, vessel, case, cord, wrappcr, band, reel, ticket, label, or other thing in, upon, about, or with whicll such chattel or article shall be so sold, or uttered, or exposed for sale or other purpose as aforesaid, shall, for every such offence forfeit ancl pay to Her hllajesty a sum of money equal to the value of the chattel & article so sold, uttered, offered, or exposed for sale or othm: purpose as aforesaid; and a f ~ ~ r t h e r sum not exceeding Fire Pounds, and not less than Ten Shillings.

"itionama 'ltsrr

t h e of tmde matks, 11. Evny addition to and alteration ok, and also any imitation of,

made with intent to any trade mark, which shall be made, applied, or used with intent to

ddmvd*	l0 "	deemed defraud, or to enable any other person to defraud, or which shall
forgel'M.

cause

26O & 27" VICTORIAE, No. 20.

Trade Marks Act-1863.

cause a trade mcrk, with such alteratiou or addition, or shall cause such imitation of a trade mark to resemble any genuine trade mark so or in such rnanncr as to be calculatcd or likely to deceive, shall be and deemed to be a false, forged, and counterfeited trade mark within the meaning of this Act; and every act of making, applying, or otherwise using any such addition to or alteration of a trade mark, or any such imitation of a trade mark as aforesaid, done by any per- son with intent to defraud, or to enable any other person to dcfraud, shall be and deemed to be forging and counterfeiting a tradc mark within the meaning of this Act.

Any person who shall

12. Where any person who, at any time after the first day of May, have sold an nttiole

one thousand eight hundred and sixty-four, shall have sold, uttered, or	having a fabe trade
mark to be bound to
exposed for sale or other purpose as aforesaid, or shall have caused or	give information
procured to bc sold, uttered, or exposed for sale or other purpose as	where ho procured it.

aforesaid any chattel or article together with any forged or counter- feited trade mark, or together with the trade mark of any other person used without lawful authority or excuse as aforesaid, and that whether any such trade mark, or such f'orged or counterfeited trade mark as aforesaid be in, unon, about, or with such chattel or article, or ' I ' in, upon, abont, or with any cask, bottle, stopper, vcsscl, case, corcr, wrapper, band, rrel, ticket, labcl, or other thing in upon, about,-,

or with such chattel or article, shall have been sold or exposed for,

sale, such person shall be bouid, upon demand in writing, delivered

to him or left for him at his last lillown dwdling~house, or at the

placc of sale or exposure for sale, by or on behalf of any person

whose trade mark shall have been so forged or counterfeited,

or used without l.awful authority or excuse as aforesaid, to give

to the person rccpiring the same, or his attorney or agent, within

forty-eight hours after such demand, full information in writing of

the name and address of the person from whom he shall have pur-

chased or obtaillecl such chattel or article, and of the time when hc

obtained the same; and it shall be lawful for any Justice of the Power to Justices to	Peace, 011 oath of such demand and refuaal, to summon before fusing to give m- summon partiecl re-
him the party refusing, and on being satisfied that such dcmand folmation.
ought to be complied with, to order such information to bc given within a certain time to be appointed by him, and any such party who shall refuse or neglect to comply with wch order shall, for every such offence, forfeit and pay the sum of Five Pounds; and such Fenaltyforrcfueal,f.6.
refusal or neglect shall be primd facie evidence that the person so refusing or neglecting had full knowledge that the trade mark, together with such chattel or article was sold, uttered, or exposed for sale or other purpose as aforesaid, at thc time of such selling, uttering, or exposing, was a forged, counterfeited, and false trado mark, or was the trade mark of a person which had been used without lawful authority or excuse, as the case may be.

13. Every person who, with intent to defraud, or to enable Markingafalm i d *

another to defraud, shall put, or cause or procure to be put upon any Penalty,	cation of quantity.
chattel or article, or upon any cask, bottle, stopper, vessel, case, cover,
wrapper, band, reel, ticket, label, or other thing, together with which

4 B any

- '

26" & 27"IOTORIrE, No. 20.

any chattel or article shall be intended to be, or shall be sold, or uttered, or exposed for sale, or for any puxpose of trade or manufac- ture, or upon any case, frame, or other thing, in or by means of which any chattel or article shall be intended to be, or shall be ex- posed for sale, any false description, statement, or other indication of or respecting the number, quantity, measure, or weight of such chattel or article, or any part thereof, or of the place or country in which such chattel or article shall have been made, manufactured, or produced, or shall put, or cause, or procure to be put upon any such chattel or article, cask, bottle, stopper, vessel, case, cover,

h wrapper, band, reel, ticket, label, or thing as aforesaid, any word, letter, figure, signature, or mark for the purpose of falsely indicating such chattel or article, or the mode of manufacturing or producing the same, or the ornamention, shape, or configuration thereof, to be the subject of any existing patent, privilege, or copyright, shall, for every such offellre, forfeit and pay a sum of money equal to the value of the chattel or article so sold, or uttered, or exposed for sale, and a further sum not exceeding Five Pounds and not lcss than Ten Shillings.

Selling, or expoding

for sale, a:$iiclca with 14. Every person who shall sell, or utter, or expose for sale, or

MW statement of for any purpose of trade or manufacture, or shall cause or procure

quantities. Penalty,	to b e sold. uttered: or exnosed for sale or other nurnose as aforesaid. any e~iattdi or article up& which shall have be&, io his knowledge; put, or upon any cask, bottle, stopper, vessel, case, cover, wrapper,
band, reel, ticket, label, or other thing, together with which such
chattel or article shall be sold, or uttcrcd, or exposed for sale or other purposc as aforesaid, shall have been so put, or upon any case, fmne, or other thing used or employed to expose, or exhibit such chattel or article for sale shall have been so put any false description, statement, or other indication of, or respecting the number, quantity, measure, or weight of such chattel, or article, or any part thereof, or the place or country in which such chattel or article shall have been made, or manufactured, or produced, shall, for every such offence, forfeit and pay a sum not exceeding Five Pounds and not less than Five Shillings.

Not on offence to 15, The provisions of this Act &all not be construed so as

.

apply nameEl or wrda

known to bc U W ~ for to make it any offence for any person to apply to any chattel

indii;atingpnrticular or article, or to any cask, bottle, stopper, wssel, case, cover,

claases of manu-

facture.

"mrapper, band, reel, ticket, label, or other thing with which such chattel or articlc shall be sold, or intended to be sold, any name, word, or expression generally used for indicating such chattel or article to be of scme particular articlc or description of manuf'acturc only, or so as to make it an offence for any person to sell, utter, or offer, or expbse for sale any chattel or article to which, or to any

-. cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing sold therewith, any such generally used name, woxcl, or expression as aforesaid shall have been applied.

Derri~tion of tnde , G. In every information, pleading, proceeding, and doeurn&

marks and forged

wde marh i,di,*~flmtsoever, in which any trade mark shall be intended -. to be men-

meats, tioned,

26" & 27" VICTORIB, No. B.

- ,.

Dude Marks A c t. 1 8 6 3.

tioned, it shall be sufficient to mention or state the same to be a trade mark without further or otherwise describing such trade mark, or setting forth any copy or facsimile thereof; and in every informa- tion, pleading, proceeding, and docun~ent whatsoever, in which it shall be intended to inention any forged or counterhit trade mark, it shdl be sufficient to mention or state the same to be a fbrged or counterfeit trade mark, without further or othcrwise describing such forged or counterfeit trade mark, or setting forth any copy or fac-

simile t hereof.

17. The provisions in this Act contained, or any proceeding, judg-

ment, conviction. for allv act hereluv described to be a misdemeanour civil rernedv, or offence, shall not, no;. shall any 6f them, take away, diminish, or prejudicially affwt my suit, proc~ss,proceeding, right, or remedy, which any person aggrieved by such act may be entitled to at law or	~	~	~	J	f	~	~	r
in equity, or otherwise, and shall not, nor. sllall any of them, exempt
or excuse any person from answering or making discovery upon examination as zt witness, or up011 interrogatories, or otherwise, in any suit or other civil proceeding: l'rovided always, that no evidence, statement, or discovery which any person shall be compelled to givc or make shall be admissible in evidence agairlst such person in sup- port of any inforrrmtion for a anisdemeanor at common law or other- wise, or of any proceeding urder the provisions of this Act.

18. In every information, conviction, $leading, and proceeding, Intent to hfraud any

against any person for any n~isderneanor, or other offence against the ,,, be mentimed in particular person need

provisions of this Act, in which it shall be necessary to allege or an informatian, &C.,

mention an intent to defraud, or to cnable another to defraud, it or proved.

shall be sufficient to mention or allege that the person accuwd of

having done any act which i s hereby made a misdemeanor or other

offence did such act with intent to defraud, OF with intent to enable

some othrr person to defraud, without mentioning or alleging an

intent to defraud any particular person; and on the trial of any

such information for any such misdemeanor, alid on the hearing

of any information or charge of or for any such other offence as

aforesaid, and on thc trial of any action against any person to re-

cover a penalty for such other offence as aforesaid, it shall not be necessary to prove an intent to defraud any particular person, or an intent to enable any particular person to defraud any particular person; but it shall be sufficient to prove with rcspect to every such misdemeanor and offence that the person accused did the act charged with intent to defraud, or with intent to cnable some other person to defraud, or with the intent that any other person might be enabled to defraud.

19. Evmy person who shall aid, abet, counsel, or procure the corn- Perm8 who aid in

mission of any offence which is by this Act made a misdemeanor, mialemoanor to be	Me commiseion of a
a h guilty.
shall also bc guilty of a misderneanor.

20. Every person who shall be convicted or found guilty of any hiishmont armis- de~ueanor undw tbw

offence which is by this Act made a misderneanor shallbe liable, at

-

- the discretion of the Court,.and as the Court shall award, to suffer such

. . punishment,

- 26" & 2 7 O VICTORIB, No. 20.

Trade Marks Act.-1 863.

punishment, by imprisonment, for not more than two years, with or without hard labor, or by fine not exceeding Five Hundred Pounds, or both by imprisonment with or without hard iabor, and finc, and also by imprisonment until the fine (if any) shall have been paid and satisfied.

Proceedings hforo

Bupremu Court or. 21. All proceedings under this Act may be taken before the Supreme

I e a l c o ~ t	O ~ F ~ U	Court or any Local Court of Full Jurisdiction, and any person suing
Jurisdiction.	on behalf of IIcr Majcsty shall be entitled to recover all his costs of suit, including a full indemnity for all costs and charges wliicb he shall havc incurred in, about, or for the purposes of the action or proceeding.

Limitation of actions,	22, No person shall conrmence any action or pi*oceeding for the recovery of any penalty, or procuring the conviction of any offender, in manner. hereinbefore provided, after the expiration of three years next after the committing the offcncc, or onc year ncxt after the first discovery thereof by the person proceeding.
&c.
TTendor of an artiolo

with n trade mark to 23. In every case in which any person shall sell, or contract to

be deemed to contract	sell, whether by writing or not, to any other person any cht te l or
that the mark is	article W-Lth any trade mark thereon, or upon any cask, bottle, stopper,
gcnuinc.	vessel, ease, cover, wayper, band, reel, ticket, hbcl, or other thing, together with which such chattel or article shall be sold, or contracted to bc: sold, the sale or contract to sell shall in eveiy such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee, that every trade mark upon such chattel or article, or upon any such cask, bottle, stopper, vcsscl, case, cover, wrapper, band, reel, ticket, label, or other thing, as aforesaid, was genuine and true, and not forged or counterfeit, and not wrongfully
used, unless the contrary shall be expressed in some writing, signed
by or on behalf of the vcndor, and dclivcred to and accepted by the
vendee.

Vendor of aa article 24. I n every case in which any person shall sell or ' contract to

with description

upon it of ita quan-	sell (whether by writing or not) to any othcr pcrson, any chattel or
tity, to be deemed to
contract that the	article upon which, or upon any cask, bottle, stopper, vessel, case,
description was true.	cover, wrapper, band, reel, ticket, label, or other thing, together with which such chattel or tlrticlt. slvall be sold, or contracted to be sold, any description, statement, or other indicat'ion of, or respecting the number, quantity, measure or weight of such chattel or article, or the placc or country in which such chattcl or article shall havc
been made, manufactured, or produced, the sale or contract to sell,
shall i r ~ every such case be dccmcd to have bccn made with a warranty or contract with the vcndor, to or with the vendee, that no such description, statement, or other indication was in any material respect false or untrue, unless the contrary shall be expressed in some writing, signed by or on behalf of the vendor, and delivered to and accepted by the vendee.

Tn suite at law or in 25, h every case in any suit at law or in equity against any

equirp against persons forged@s person for forging or counterfeiting any trade mark, or for fraudu-

may lently applying any trade mark to any chattel or article, or for

selling,

a&	& B~~~"IcToIWE, NO. 20.
Trade Harks Ac t .1863.

selling, exposing for sale, or uttering, any chattel or article with any ~~~~~~~~~J~ ,&

trade mark falsely or wrongfully applied thereto, or with any forged award iojuwtion, &C.

or counterfeit trade mark applied thereto, or for preventing the re-

petition or continuance of any such wrongful act, or the committal

of any similar act, in which the plaintiff shall obtain a judgment or

decree against the defendant, the Court sl~all have power to direct	.
every such chattel and article to be destroyed or otherwise disposed
of; and in every such suit in a Court of law, the Court shall or may,
.
upon giving judgment for the plaintiff, award a writ of injunction or injunctions to the defendant, commanding him to forbear from com- mitting, and not, by himself or otherwise, to repeat or commit any offence or wrongf'ul act of the like nature as that of which he shall or may have been convicted by such judgment; and any dis- obedience of any such writ of injunction or injunctions, shall be punished as a contempt of Court; and in every such suit, at law or in equity, it shall be lawful for the Court, or a Judge thereof, or any special Magistrate, to make such order as sucg Court, or Judge, or Special Magistrate, shall think fit, for the inspection of every or any manufacture or process carried on by the defen- dant, in which any such forged or counterfeit track mark, or any such trade mark as aforesaid, shall be *al.llcged to be used or applied as aforesaid; and of every, or 011 any chattrl, articlc, and thing in the possession or power of the dcfenclant, alleged to have thereon, or 61 any way akachcd thcrcto, m y forged ''or oounterfcit trade mark, or any trade mark falsely or wrongfully applied; and every
or any instrument 'm the possession or power of the defendant, used,
or intended to be, or capable of being used for producing or nd i ing any forged or counterfeit trade mark, or tradc mark alleged to be forged or counterfeit, or for falsely or wrongfully applying any tradc mark; and any person who shall refuse or ncglcct to obey any such order shall be guilty of a contempt of Court.

26. In every casc in which any person shall do or cause to be P c ~ ~ o n e ~ ~ c v c d b ~ forgeries may recover

done any of the wrongful acts followii~g, that is to say--shall forge damages agaiilst the

or counterfeit any trade mark; or for the purpose of sale, or for the guilty ptiet$.

purpose of any manufacture or trade shall apply any forged or coun- terfeit trade mark to any chattel or article, or to any cask, bottle, stopper, vessel, case, cover, wrapper, b k d, red, ticket, label, or thing,

in or with which any chattel or articlc shall be intended to be sold

or uttered, or exposed for sale, or for'any purpose of trade or manu- facture; or shall enclose or place any chattel or article in, upon, under, or with any cask; bottle, stopper, vessel, case, cover, wrapper,

band, reel, ticket, label, or other thing, to which any trade mark shalI have been falsely applied, or shall apply or attach to any

chattel or article any case, cover, reel, wrapper, band, tickct, label,

or &her thing, to which any trade mnrk s h d have bee11 falsely

applied, or to which any forged or counterfeit trade mark shall have been. applied; or shall enclose, place, or attach any chattel or article in, upon, under, with, or to any cask, bottle, stopper, vcssel, case, cover, reel, wrapper, band, ticket, label, or other thing having

thereon any trade mark of any other person; every person aggrieved 1

- by

4 0

-. .-

l h d e Marks Act.-l 863.,

by any such m o w 1 act shall be entitled to maintain an action or

suit for damages in respect thereof against the person who shall be

guilty of having done m& act, or causing or procuring the same to.

be done, and for preveqting the repetition or continuance of the

wrongful act, and the committal of any similar act.

Defendant obtaining 8

verdict to have full 27. In every action which any person, under the provisions of this Act, may commence as plaintiff for or on behalf of Her Majesty, for recovering any penalty or sum of money, if the defendant shall obtain judgment; hc'shall b e entitled to recover his costs of suit, which shall include a full indemnity for all the costs, charges, and expenses by him expended or incurred in, about, or for the purposes of the action, unless the Court, or a Judge thereof, or a Special Magistrate, shall direct that costs of the ordinary amount only shall be allowed.

jnaemniq mb,

A plaintiff nuing for

a penalty may be corn- 28. In any action which any person shall, under the provisions of

eilea to givemcurity this Act, commence as plaintiff for or on behalf of Her Majesty, for

301 008to.	recovering any penalty or sum of money, if it shall be shown to the satisfaction of the Court, or a Judge thereof, or any Special Magis- trate, that the person suing as plaintiff for or on behalf of Her Majesty
has no ground for alleging that he has been aggrieved by the com-
mitting of the alleged offence in respect of which the penalty or sum of money is alleged to have become payable, and also that the person so suing as plaintiff is not residcnt within the jurisdiction of the Court, or not a person of sufficient property to be able to pay any costs which the defendant inay recover in the action, the Court, or
Judge, or Special Magistrate, shall or may order that the plaintiff
shall give security by the bond or recognizance of himself and a surety, or by the deposit of a sum of money, or otherwise as the Court, or Judge, or Special Magistrate shall think fit, for the pay- ment to the defcndant of any costs w l k h he may be entitled to recover in the action.

GwaapF may make 29.

Subject to the provisions of this Act, i t shall h*: lawful for the Governor, with the advice and consent of the Executive Council, from time ta time to make, alter, and vary such regulations as may be necessary for the better carrying out t h ~ provisions of this Act relating to the registration of tradc marks, and such regulations,

regulJ1ona fot m&

bring trade m a r k

when published in the Government Gazette, shall have the force

of law.

Zlhort title. 30. This Act may be cited as The Trade Marfts Act of 1863,"

In the name and on behalf of the Queen I hereby assent to

thit3 Act,

' D. DALY, Governor,

Adelaide : Printed by authority by W. C, Cox, Government Printer, Victoria-square.