such trade mark or name of such other person, or the buying, selling or trafficking in any such bottle or siphon without such written consent of such other person, or the fact that any junkdealer has in his possession any bottle or siphon having upon it such a trade mark or name without such written consent, shall Prima facie be prima facie evidence of trading or trafficking within the meaning of paragraph (b) of this section. 63-64 V., c. 46, s. 3. evidence. Beverage trade marks and trade names.]-A soda water manufacturer who fills for the purpose of sale bottles having the name of another manufacturer permanently placed thereon is guilty of an indictable offence under sec. 490 unless the manufacturer whose name appears on the bottles has given a written consent to such filling. It is not essential to the offence that the name on the bottles should be registered as a trade mark. The King v. Irvine, 9 Can. Cr. Cas. 407, 9 O.L.R. 389. The circumstances may make the offence one both under this section and under section 488 (d) for applying a false trade description, as to which see note to sec. 487. This section is designed to protect manufacturers and bottlers whose business is now injured by the action of unscrupulous persons, who procure bottles from second-hand dealers, junk stores, etc., and fill them with inferior soda water, ginger ale, etc., and by merely covering up the manufacturer's name on the bottle, and covering up his trade mark, sell the inferior ginger ale, etc.; and although it is impossible to shew that there is any fraudulent representation or deception practiced on the public in the first instance (as the name and trade mark are covered up), still the use of the bottles in this way eventually injures the manufacturer, as the new cover sometimes slips off and his reputation becomes injured in some cases thereby. Commons Sessional Debates, 1900, page 5290. On the consideration of this section in the Senate the Hon. Mr. Power said: "The necessity for this provision has arisen from the practice of persons who make up certain kinds of mineral and other waters using the siphons and bottles bearing the trade mark of the person who has manufactured that which was in the bottle first, and it is really a sort of forgery. If one wishes to use a bottle which has contained 's ale, he can wipe the label off, but this is intended to meet the cases of bottles and siphons which have the original maker's name stamped on the bottle or siphon, and one can readily understand how fraud is perpetrated by selling an inferior article with one of these trade marks on it." Senate Debates, 1900, page 710. It will be observed that under this enactment the trade mark other than a name of a person is protected only when it has been “duly registered," i.e., registered in Canada under the Canadian Trade Mark Act or otherwise protected in respect of its British registration by the Imperial Trade Marks Act. (See Code sec. 335 (s).) Sub-paragraph (b) and sub-section (2) are limited to bottles and siphons and do not include casks, kegs and cases, and packages of that class, as does sub-paragraph (a). The offences under sub-paragraph (b) consist either in (1) trading or trafficking in the bottles and siphons, or (2) filling the bottles and siphons for the purpose of sale or traffic. Time.]-The prosecution must be commenced within three years from the time of the commission of the offence. Sec. 1140 (a). Punishment.]-See sec. 491. Servant acting under instructions.]—See sec. 495. where none specified. 491. Every one guilty of an offence defined in this Part in Penalty respect to trade marks or names, or in respect to trade descriptions or false trade descriptions for which no penalty is in this Part otherwise provided, is liable,— (a) on conviction on indictment, to two years' imprisonment, On indictwith or without hard labour, or to a fine, or to both im- ment. prisonment and fine; and, conviction. (b) on summary conviction, to four months' imprisonment, On summary with or without hard labour, or to a fine not exceeding one hundred dollars; and, in case of a second or subsequent conviction, to six months' imprisonment, with or without hard labour, or to a fine not exceeding two hundred and fifty dollars. 2. In any case every chattel, article, instrument or thing, Forfeiture. by means of, or in relation to which, the offence has been committed shall be forfeited. 55-56 V., c. 29, s. 450. Indictment or summary proceedings.]—The offences specified in secs. 492 and 493, of falsely representing goods as having been manufactured for the Government, and of unlawfully importing goods liable to forfeiture under the trade mark law would appear to be examples of Code offences for which a corporation must be proceeded against under the summary convictions clauses. But for the offence declared by sec. 489 of selling goods to which a false trade description has been applied, provision is made by sec. 491 for punishment; (a) upon indictment, by imprisonment or fine, or both; (b) upon summary conviction by imprisonment or fine; and it was held that under that section a justice has no summary jurisdiction against a corporation, and that the intention to be inferred from such an alternative provision is that where the accused is a corporation, the only authorized procedure is that of indictment. The Queen v. Eaton (1898), 2 Can. Cr. Cas. 252. at with intent Form of indictment.]-That A.B. on to defraud unlawfully did forge a certain trade mark, to wit (here describe the trade mark) the property of registered in Canada in accordance with the Trade Mark and Design Act against the form of the statute in such case made and provided. Limitation.]-It would seem that under secs. 1140 (a) and 1142, the prosecution, if by indictment, must be commenced within three years; and, if by summary proceedings, within six months except in localities where a one year term is substituted under the latter section. Disposal of forfeited goods.]-See sec. 1039. 492. Every one is guilty of an offence and liable, on sum- Falsely mary conviction, to a penalty not exceeding one hundred dollars, representing who falsely represents that any goods are made by a person that goods are manu factured for His Majesty. Unlawful holding a royal warrant, or for the service of His Majesty or any of the royal family, or any government department of the United Kingdom or of Canada. 55-56 V., c. 29, s. 451. Limitation.]-See sec. 1142. 493. Every one is guilty of an offence and liable, on sumimportation mary conviction, to a penalty of not more than five hundred of goods liable to dollars nor less than two hundred dollars who imports or forfeiture. attempts to import any goods which, if sold, would be forfeited under the provisions of this Part, or any goods manufactured in any foreign state or country which bear any name or trade mark which is or purports to be the name or trade mark of any manufacturer, dealer or trader in the United Kingdom or in Canada, unless such name or trade mark is accompanied by a definite indication of the foreign state or country in which the goods were made or produced; and such goods shall be forfeited. 55-56 V., c. 29, s. 452. See also the Customs Act as to importation of goods purporting to be marked with trade mark of a dealer in the United Kingdom or Canada. Servant acting under instructions.]-See sec. 495. Limitation.]-See sec. 1142. Making 494. Any one who is charged with making any die, block, instruments machine or other instrument for the purpose of forging, or for forging trade marks. being used for forging, a trade mark, or with falsely applying to goods any trade mark, or any mark, so nearly resembling a trade mark as to be calculated to deceive, or with applying to goods any false trade description, or causing any of the things in this section mentioned to be done, and proves, Defence. (a) that in the ordinary course of his business he is employed, on behalf of other persons, to make dies, blocks, machines or other instruments for making or being used in making trade marks, or, as the case may be, to apply marks or descriptions to goods, and that in the case which is the subject of the charge he was so employed by some person resident in Canada, and was not interested in the goods by way of profit or commission dependent on the sale of such goods; and, (b) that he took reasonable precaution against committing the offence charged; and, (c) that he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark, mark or trade description; and, (d) that he gave to the prosecutor all the information in his power with respect to the person by or on whose behalf the shall be discharged from the prosecution but is liable to pay Discharge. 495. No servant of a master, resident in Canada, who bona Servant not fide acts in obedience to the instructions of such master, and, liable. on demand made by or on behalf of the prosecutor, gives full information as to his master, is liable to any prosecution or punishment for any offence defined in this Part. 55-56 V., c. 29, s. 454. Prosecution of master for act of servant.]—See note to sec. 486. Offences connected with Trade and Breaches of Contract. 496. A conspiracy in restraint of trade is an agreement Conspiracy between two or more persons to do or procure to be done any unlawful act in restraint of trade. 55-56 V., c. 29, s. 516. in restraint of trade. 497. The purposes of a trade union are not, by reason Acts in merely that they are in restraint of trade, unlawful within the restraint not meaning of the last preceding section. 55-56 V., c. 29, s. 517. Trade union.]-The Trade Unions Act, R.S.C., 1906, ch. 125, defines the expression "trade union" to mean (unless the context otherwise requires) such combination whether temporary or permanent for regulating the relations between workmen and masters or for imposing restrictive conditions on the conduct of any trade or business as would, but for that statute, have been deemed to be an unlawful combination by reason of some one or more of its purposes being in restraint of trade. R.S.C. 1906, ch. 125, sec. 2; and see Code sec. 6. unlawful. 498. Every one is guilty of an indictable offence and liable Penalty for to a penalty not exceeding four thousand dollars and not less conspiracy. than two hundred dollars, or to two years' imprisonment, or, if a corporation, is liable to a penalty not exceeding ten thousand dollars, and not less than one thousand dollars, who conspires, combines, agrees or arranges with any other person, or with any railway, steamship, steamboat or transportation company, (a) to unduly limit the facilities for transporting, pro- To limit ducing, manufacturing, supplying, storing or dealing in transporta 26-CRIM. CODE. tion facilities. Restrain commerce. Lessen manufacturing. Lessen competition. Saving. any article or commodity which may be a subject of trade or commerce; or, (b) to restrain or injure trade or commerce in relation to any such article or commodity; or, (c) to unduly prevent, limit, or lessen the manufacture or production of any such article or commodity, or to unreasonably enhance the price thereof; or, (d) to unduly prevent or lessen competition in the production, manufacture, purchase, barter, sale, transportation or supply of any such article or commodity, or in the price of insurance upon person or property. 2. Nothing in this section shall be construed to apply to combinations of workmen or employees for their own reasonable protection as such workmen or employees. 63-64 V., c. 46, s. 3. Trade combines.]-A person who organizes an association to restrict and control the business of retail coal dealing to the members of the association and to prevent anyone else from obtaining coal from the foreign shippers at wholesale rates for resale in the district in which the association operates is properly convicted under Code sec. 498 of conspiracy to prevent competition in the sale of a commodity which is the subject of trade. R. v. Elliott, 9 Can. Cr. Cas. 505, 9 O.L.R. 648. Two or more corporations may be indicted for conspiracy in furtherance of a trade combine under sec. 498 without joining a personal defendant. R. v. Central Supply (1907), 12 Can. Cr. Cas. 371. For the purpose of proving the motive and effect of certain corporate acts, evidence is properly admissible on a charge of conspiracy laid against two corporations, to shew that the formation and operation of an illegal trade combine was the object of the incorporation of each of them, and that the formal agreements whereby the property and assets of unincorporated trade associations were respectively assumed by them, were made in furtherance of that design. And evidence of the nature of the conspiracy alleged may be given before proof of the criminal agreement. Ibid. By Code sec. 590 it is enacted that: "No prosecution shall be maintainable against any person for conspiracy in refusing to work with or for any employer or workman, or for doing any act or causing any act to be done for the purpose of a trade combination, unless such act is an offence punishable by statute." Undue limitation and unreasonable enhancement.]-The prevention of every enhancement of prices or every lessening of competition in the purchase, barter or sale of commodities was not intended to be included in sub-section (b), for where enhancing, preventing or lessening is specifically referred to it is qualified by the word "unreasonably” or “unduly.” Sub-section (b) cannot well have been intended to embrace every combination to prevent or restrain particular kinds of systems of trading or particular kinds of bargains. At most, it includes only combinations for the direct purpose of preventing or materially reducing trade or commerce in a general sense with reference to a commodity or certain commodities, or for purposes designed or likely to produce that effect. Gibbins v. Metcalfe (1905), 15 Man. R. 583. |