False signature.

Penalty.

Knowingly certifying false copy by official.

False signature.

Penalty.

False entry in Government

account books.

Transfer by person other than owner.

False

dividend

warrants.

(d) not being such officer or deputy fraudulently signs or certifies any copy of certificate of any record, or any copy of any certificate, as if he were such officer or deputy. 55-56 V., c. 29, s. 438.

483. Every one is guilty of an indictable offence and liable to two years' imprisonment who,

(a) being an officer required or authorized by law to make or issue any certified copy of any document or of any extract from any document, wilfully certifies, as a true copy of any document or of any extract from any such document, any writing which he knows to be untrue in any material particular; or,

(b) not being such officer as aforesaid fraudulently signs or certifies any copy of any document, or of any extract from any document, as if he were such officer. 55-56 V., c. 29, s. 439.

484. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, with intent to defraud,— (a) makes any untrue entry or any alteration in any book of account kept by the Government of Canada, or of any. province of Canada, or by any bank for any such Government, in which books are kept the accounts of the owners of any stock, annuity or other public fund transferable for the time being in any such books, or who, in any manner, wilfully falsifies any of the said books; or, (b) makes any transfer of any share or interest of or in any

on

stock, annuity or public fund, transferable for the time being at any of the said banks, in the name of any person other than the owner of such share or interest. 55-56 V., c. 29, s. 440.

Form of indictment for making a false transfer of shares.]—That A. at unlawfully did make a transfer of a certain share and interest of and in certain stock, which were then transferable at the bank of at aforesaid, to wit, the share and interest of in the (state the amount and nature of the stock), in the name of one C.D., he the said C.D., not being then the true and lawful owner of the said share and interest of and in the said stock, or any part thereof, with intent thereby then to defraud one C.L.D., the owner of the said shares.

485. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, being in the employment of the Government of Canada, or of any province of Canada, or

of any bank in which any books of account mentioned in the last preceding section are kept, with intent to defraud, makes out or delivers any dividend warrant, or any warrant for the payment of any annuity, interest or money payable at any of the said banks, for an amount greater or less than that to which the person on whose account such warrant is made out is entitled. 55-56 V., c. 29, s. 441.

Forgery of Trade Marks and Fraudulent Marking of

Merchandise.

486. Every one is deemed to forge a trade mark who Forgery. either,—

(a) without the assent of the proprietor of the trade mark Simulating makes that trade mark or a mark so nearly resembling it trade mark. as to be calculated to deceive; or,

(b) falsifies any genuine trade mark, whether by alteration, Falsifying addition, effacement or otherwise.

trade mark..

2. Any trade mark or mark so made or falsified is, in this Forged Part, referred to as a forged trade mark. 55-56 V., c. 29, trade mark.

s. 445.

Origin of enactment.]-This and the following sections of the Code, under the general heading of forgery of trade marks and fraudulent marking of merchandise, originate in the Imperial statute, 50-51 Vict., ch. 28, adopted in Canada by 51 Vict. (Can.), ch. 41.

British precedents.]-Where a colonial legislature re-enacts in substantially the same terms a British Act not originally applying to the colony, the adopted enactment is to be construed in the colony in the same way as the original enactment. The two are to be treated as being in pari materiâ. Trimble v. Hill, 5 App. Cas. 342; R. v. Authier (1897), 1 Can. Cr. Cas. 68.

Trade mark.]-See statutory definition in sec. 335.

A trade mark cannot exist in gross, Cotton v. Millard, 44 L.J. Ch. 90; nor can there be an exclusive right to a mere adjective description, ex. gr., "nourishing stout." Raggett v. Findlater, L.R. 17 Ex. 29.

False trade description.]-See secs. 341, 487, 488 (d).

Calculated to deceive.]-Where a trade mark is complained of as being forged and as infringing the rights of a proprietor of a duly registered trade mark, any resemblance of a nature to mislead an incautious or unwary purchaser, or calculated to lead persons to believe that the goods marked are the manufacture of some person other than the actual manufacturer, is sufficient to bring the person using such trade mark under the purview of this section.

In such cases it is not necessary that the resemblance should be such as to deceive persons who might see the two marks placed side by side, or who might examine them critically. R. v. Authier (1897), 1 Can. Cr. Cas. 68 (Que.). The trial judge may examine the label for himself and form a

Applying

conclusion as to the resemblance without expert evidence as to its tendency to deceive. In re Marks & Tellefsen's Application, 63 L.T. 234; R. v. Authier (1897), 1 Can. Cr. Cas. 69.

Reasonable precaution.]-In Coppen v. Moore, [1898] 2 Q.B. 300 and 306, decided under the English Merchandise Act, 1887 (50 and 51 Vict. (Imp.), ch. 38), the prosecution was for selling goods to which a false description was applied, and in the case stated by the justices it appeared that the prosecutor asked a salesman in the accused's shop for an English ham; the salesman pointed to some American hams, and said: "These are Scotch hams." The prosecutor chose one, and asked for an invoice containing a description of the ham bought, and was given one, stating the purchase of a "Scotch" ham. It was held by Wright and Darling, JJ., that the oral statement that the ham was Scotch did not amount to a breach to the Act, but the statement in the invoice was an application of a false description to the goods sold, within the meaning of the statute; but they reserved the question of whether the employer was liable for the act of his servant, for the consideration of the court for crown cases reserved. On this point it appeared that the employer was not present at the time of the sale; that he had issued a printed circular to his employees, forbidding the sale of the hams under any specific name or place of origin, but there was evidence that the American hams were dressed so as to deceive the public; on the strength of which it was found that the employer had not taken all reasonable precautions against committing an offence against the Act, and the Court (Lord Russell, C.J., Jeune, P.P.D., Chitty, L.J., Wright, Darling and Channell, JJ.), therefore held that under the circumstances the employer was criminally responsible for the act of his servant, as he had not discharged the onus of shewing that he had acted innocently. On this point Lord Russell says: "We conceive the effect of the Act to be to make the master a principal liable criminally (as he is already, by law, civilly) for the acts of his agents and servants, in all cases within the section with which we are dealing, when the conduct constituting the offence was pursued by such servants and agents within the scope or in the course of their employment, subject to this: that the master or principal may be relieved from criminal responsibility when he can prove that he had acted in good faith, and done all that it was reasonably possible to do to prevent the commission by his agents and servants of offences against the Act."

487. Every one is deemed to apply a trade mark, or mark, trade marks or trade description to goods who,

To goods. To covering for goods.

By placing goods in covering.

By fraudu

lent use of

trade mark.

(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, incloses 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 trade mark or mark 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.

other

2. A trade mark or mark or trade description is deemed to By connectbe applied whether it is woven, impressed or otherwise worked ing with, into, or annexed or affixed to, the goods, or to any covering, article. label, reel, or other thing.

3. Every one is deemed to falsely apply to goods a trade Falsely mark or mark who, without the assent of the proprietor of the applying. trade mark, applies such trade mark, or a mark so nearly resembling it as to be calculated to deceive. 55-56 V., c. 29, s. 446.

Falsely applying trade mark.]—On a charge of falsely applying a trade mark the onus of proving that the assent of the proprietor of the trade mark has not been given is upon the prosecution, for sec. 488 (2) applies only to cases of "forgery" of a trade mark and not to cases of "falsely applying," to shift the onus to the defendant of proving such assent. R. . v. Howarth (1898), 1 Can. Cr. Cas. 243 (Ont.).

False trade description.]—A "false trade description" means a trade 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 Part. Sec. 335 (1).

The provisions of Part VII. respecting the application of a false trade description to goods, or respecting goods to which a false trade description is applied, extend to the application to goods of any false name or initials of a person, and to goods with the false name or initials of a person applied, in like manner as if such name or initials were a trade description. Sec. 341 (2).

A wine label stating that the contents are blended with wine produced from finest foreign grapes will not be held to constitute a false trade description because untrue as to the foreign grapes being of "finest" quality. The word as so used is a mere appreciation by the vendor. Hooper v. Riddle (1906), 21 Cox C.C. 277.

A chemically true description may be false as a trade description. The defendant sold as "soda crystals" a compound of crystallized carbonate of soda and crystallized sulphate of soda, while in the trade the description "soda crystals" was usually applied to crystallized carbonate of soda (washing soda). His conviction under the Act was upheld. Fowler v. Cripps, 22 Times L.R. 73.

The use of the words "quadruple plate" in an advertisement of sale of silverplated ware may constitute a false trade description, the application of which is an offence under this section. R. v. T. Eaton Co. (1899), 3 Can. Cr. Cas. 421.

It is not necessary that the false trade description should be physically connected with the goods or that it should accompany the same, and oral evidence is admissible to connect the description of the goods in the advertisement with the goods afterwards sold. Ibid.

The description in an invoice of the goods is sufficient, but an oral statement made on the sale is not within this section. Coppen v. Moore, [1898] 2 Q.B. 300, 306; Langley v. Bombay Tea Co., [1900] 2 Q.B. 460.

Gunpowder manufacturers contracted to supply gunpowder under the trade mark of "R. L. G., No. 4." Owing to an explosion they were unable to manufacture the powder, but they obtained gunpowder equal in quality

from a German manufacturer, and packed it in barrels supplied by the Government, and inserted their own trade name on the labels as contractors. They sustained a loss by having to import the gunpowder, and no complaint was made by the Government, but no communication was made on delivery that the gunpowder was of German manufacture. The Q.B. Division held justices were wrong in refusing to convict, as the description attached implied they were delivering gunpowder of their own manufacture, when, in fact, it was not such. Starey v. Chilworth Gunpowder Co., 24 Q.B.D. 90, 59 L.J.M.C. 13.

Selling machine-made cigarettes with a label describing them as handmade is a false trade description. Kirshenboim v. Salmon and Gluckstein, Limited, [1898] 2 Q.B. 19.

A bought six barrels of beer from L., a brewer, and received with the casks an invoice describing the casks as barrels. One was six gallons short. Held, that the delivery of the invoice might be an application of a false trade description, although such invoice was not physically attached to the goods, and that evidence of L. having in previous transactions sent casks of short measure was admissible evidence of L. having authorized a false trade description to be used. Budd v. Lucas, [1891] 1 Q.B. 408.

The foundation of a margarine mixture made in France and imported as "Oleo margarine" was mixed at Southampton with a small percentage of imported Danish butter and English milk. The finished product was called "Le Dansk" and sold in England in card boxes under the description of "Le Dansk French Factory, Le Dansk, Paris." The conviction was affirmed on the ground that the words were a false trade description and the article was obviously represented as being of foreign make when it was not. Bischop v. Toler, 44 W.R. 189, 65 L.J.M.C. 1.

At his establishment in Ireland Lipton sold under the descriptions— (1) "Lipton's prime, mild cured," and (2) "First quality smoked ham, own cure at Lipton's market," hams which had been manufactured and cured by him in America. The Queen's Bench (Ireland) held that neither of the descriptions was a false trade description within this section. v. Lipton, Q.B.D. (Ir.), 32 L.R. (Ir.) 115.

R.

Appellant asked at respondent's shop for two half-pounds of tea, and was supplied with two packets, on each of which was stamped on the outside in ink a notice that the weight, including the wrapper, was half a pound. The weight of the tea in each case was slightly less than half a pound, but the weight of the tea and wrapper was more than half a pound. The Q.B. Division upheld the refusal of the magistrates to convict, and held there had been no false trade description applied within the meaning of the Act. Langley v. Bombay Tea Co., [1900] 2 Q.B. 460, 69 L.J.Q.B. 752, 19 Cox C.C. 551.

An article was sold in packets as "S.'s patent refined isinglass." preceded by the words "By His Majesty's Royal Letters Patent," and the Royal coat-of-arms. On analysis the contents were found to be gelatine. An information for unlawfully applying to gelatine a false description, and thereby stating it to be isinglass, also with representing it to be the subject of an existing patent, was right dismissed on the ground that isinglass was often used for gelatinous matters, and that the words “patent refined singlass" were not an untrue description. Gridley v. Swinborne, 52 J.P. 791, 5 T.L.R. 71.

B., a mineral water manufacturer, made use of bottles moulded with the name and address of W., another manufacturer. but caused a paper label, bearing his own name and address, to be put upon the bottles. The delivery was accompanied by an invoice, which left no doubt that B. was the vendor. The magistrates dismissed the summons on the ground that