World Intellectual Property Organization

United Republic of Tanzania

Merchandise Marks Act, 1963 (No. 20 of 1963)

 

 

No. ' 20 Merohandise Marks , 1963

"forged trade mark" ha. til. meaning assigned to it by section 4; "goods" means anything whiehia the' subject of trade. manufacture or merchandise; ' , '. "inspector" means any pcJ'6OJll,' ",p.ppom• ted by the , Minister to be

, ' an inspector for the purposeS oftliis Act; "label" includes any band or ticket; "Minister" means the Minister ~or the time being responsible for matters

of commerce; , " , " ' "name" includes any abbreviation of a name; , ' , Utrade description" means any description. statement. or other indication. direct or indireot

(a)
as to the number. quantity. measure. gauge or weight of any goods; or
(b)
as to the standard of quality of any goods. according to a classification commonly used or recognized in the trade; or
(c)
as to the fitness for purpose; strength. performance or behaviour , , of any goods; or
(d)
,as to the place or country in which any aood~ W.cJ'o made or , produced; or ,
(e)
as to the mode of manufacturing or producing any goods; or
(f)
as to the , material of which any goods are composed; or
(g)
as to any goods being the &ul>ject of an e~tini pa~t. privilege

or copyright; " ' ansi the use of any figure. word. or mark. which. according to the custom of the trade. is commonly taken to be an indication of any of the above matters shall be deemed to be a trade description within the meaning of this Act; Cap. 394 "trade mark" has the meaning assigned thereto in the Trade Marks Ordinance. '

(2)
Without prejudice to the generality of the definitions contained ' in subsection (1). a trade description (to WhichtNM of the matters mentionM in the delinition <>t "'trade def.icdptiQp" it1'01ates) $baU be deemed for the purposes of this Act: 'to be a fal$" trade description if it ~ likely to be m.i~understm>d al>~ ot mistl\~ fOr. an jndication as to .the same or some other such matter which wOllld befjlse, or misleading lri a material respect as regards the goods to which the,description is applied. and ~ything likely to be,misunderstMdas. 'MJitistaken for. an indicationof any of those ma,ttersshall be dtJemedifor tbOfiepurposes 'to be a trade description.
(3)
The customs entry relating 'to ' :intportedfoods shall • . for the purposes of this Act. be deemed to be atradedescriptiori'applied to those goods. ' ,

PART 11 FORGERY AND DECEPTIVE ApPLICATIoN" OF 'JlrU.DE MARKS. ETC.

Forging or $. Every person who-,.,-. falsely

(JI.) forges an.y trade mark; .Qr .' '"

applymga

trade mark (b) falsely applies to gl'Ods any tmde : ..~d~ or any mark,p ,nearly or description rl!Sembling a uade m$"k I$to,'"' lik~y'w deceive; 01" ",

an offence

(c) 1l1aikesuny die. black. mt.CIhine. Or ~instrument, : for th~ purpose of forging~orofbeinguud fotforgiDg. a ttaido'mar1t;or

1963 3

Merchahdise Marks

(d)
appliCt$o £Ill¥ f~trade descriplioD;,to goods;, or "
(e)
'Cl~'Of or has ih lUs 'poss~iOh; any, die.bro~k. machine. or
Other itiStttmietJ.t fOt fli~ purpt)Se Of f6rgitt~a trademark; or

(t)Cil~ ~yofihetbmgs referred to in the foregoing paragfaphs of
this section to be done.

shall. subject to the provisions of .this Act and unleSs he proves that he acted without iIlItent to defraud. be guilty of an offence , and ,shall on conviction be liable to a fine not exceeding ten thousand shi11ings .or to impriso11ment for a term lI1Gt eKceeding 0fie ytw' or ttl both such fine and such imptisonment.

4. A person shall be deemed to forge a trade mark who either-Certain acts

(a) Wlth6bt the assent of t1ie proprietor of the ttade'matk ihakes that r::-:':::l ~

trade mark or a mark so nearly resembling that trade mark as to a trado mark be likely to deceive; or

(b) falsifies anygenuioe trade mark. whether by alteration. additron.
effactll1ient.
or otherw~,

I

and any trade mark or mark so made or falsified,. is in this Act referred to as a forged trade mark.

5. It sJuill be a sufficient def~ toa.ny~llltrge of making any die. Savi~g of block, machilie, t)r other ihsttUment for th~ ~of forging. or being i~r:,~in~C:; used for forgi11g.a trade mark, or of falsely applying to goods lU1y trade coU!SO of mar.lc or any m~k so nearly resembling a , trade mark as to be likely busmess to , 4eceive. or of 'J!Yilig to ,good,S anor

~~p ,' y' false trade d,esctiption.

causilig any 6f the "-" gs in, this section mehtioned to be done, if the accused Satisiies the court

(a)
that in the ordinary course of his business he is employed. , on
behalf of O\:het petSOtis. to make dieS. blocks. machines, or other
itiBthllnents for makingoc bemg used in making trade markS. or.
as
thectlse may be. to apply trade marks or trade descriptions to
goods. and that in the case which is the subject of the charge he
was so employed, by some person resident in Tanganyika. ,and
waS.not interested ,ih the gOOds bY'way of ptofit or cotntnission
dependent on the saJ~ 6f such goods; attd
(b)
that,he,took reasonable precautiobsagaiost cotnniitting the ~ce
charged; and

(e}that 'he had, at the tUne Of the cortUnission. of th~ alfeged offence.
no~nto suspect the genuineness of the trade,mark or trade
, des¢f\ptioti;and ,

(d) tha.t he g~ve to the prosecutor all the information in his power
With res~,to the ~'tsonsOh Wh~ behalf thtl: trademark or
tfad'e d~ct1l1tioo. Was a!)plied.

~. Ewry J)etS'Oh Who '8eI1~. or eXposes fOr sa'ie.Ot ,~in hrsP6ssmion Soiling goods fot saii; 01' (Of any pti~of Ittade. Or man~fa~n~:anY good~ to which ~~:~ a,nyforged trade mark or false trade descttptiM is.a~~to wblch 'or descri~ any trade mark or , mark so nearly resembling a trade mark as to be tions an litfdy.'tt) dC!ceiveisfalsely applied. as the case 111AY 'be. shall. 'uilless he ollenee ph)vC!8 eith«-

MerchanctiseMarks

(a) that having.takea. all reasona*,:pr"liltiOlls. agaimsteommittingan , offence agaiostthis Act, he ha4, at .Ule·. time of thecom,m;iiSion of

. tlteailege,4 ()ffence•. no . r~,tosl.lspect tlle.genuineD¢SS of the trade mark, mark or trade description, and that:on demand made ?r or on beh~ of the prosecutor. he gave aU the inform~tio~ in hIS power wIth respect to the persons from whom he obtain.ed such goods: or

(b) .tllat otherwise he had aotedipnocently,

be guilty ·· of an ollfence ~d shall on conviction be liable 'to a . fine not exceeding ten th()usand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.

Actswhi~

7.-(1) A person shall be deemed to apply a trade mark or mark or

constitute

applico:ation trade description to goods who-

of trade

marks and (a) applies it to the goods themselves; or

descriptions

(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. encloses or annexes any goods which are sold or exposed or had in possession tor any purpose of sale. trade or manufacture, in, with or to any covering, label, reel or other thing to which a trademark or trade description has been applied; or
(d)
uses a trade mark, mark or trade description in any manner likely to lead to the belief that the goods in connection with which it is used are designated or described by that trade mark. mark or trade · description.
(2)
A person shall be deemed falsely to apply a trade mark . or mar~ to goods who without the assent of the proprietor of a trade mark applies such trade mark or a mark so neady resembling it as to be likely to deceive. ' .
(3)
The provisions of this Act respecting the application of a false trade description . to goods shall extend to the application to goods of any such figures. words. marks or colours or arrangement or combination thereof., whether ' including . a trade mark or not, or any false lWDe or initials. as are likely to lead persons to believe that the goods are the manufacture or' merchandise of some · person other than the person whose manufacture or merchandise they ' in fact are and provisions relating to goods to which a false · trade description is applied shall be constru¢ accordingly. .

. (4)GOPds. delivered jn pursuanceofa request mad~by aref~rence to a trade mark or trade description appearing inany.sign,aclvertisement, invoice. wine list; business letter; business paper or other commercial co~unicat!()n; .shaH~for the pur{lOse of P.aFagrapb(d) of~ubs~on (1)of this' section, be · deemed to be goods In connectIon WIth which the

. tradelllarkortrade.description is used.

Existing use 8.-(1)· Where~tthe commencement .ofthis Acta· trade ,dl\iSCription

saved in

certain cases is lawfully aQd generally applied to goods of Jlparticular, class. or

,Me"chandi~M<lFks

t:.mattuilletured b-yaJ:!ll\rticular methOd, 'to i.D.d.icate the ipat1i¢~:!4)lass .or melih0d otmanWiacture of su¢h good8,the provisions:iof',.tlijs \~t With respect to false trade descriptions shU not apply to suGb;ta¢.d,escription when so applied: ' " '\ :iO ,

. Provided that: where such trade descripti()n inCl~des, ilie ~ine of a place or' country, and is likely to mislead as to .the,pl~,(),;,:coWl~y

w~ere t~e goods to which it.is applied 'Yere actually ~d~'PI;' ,PJlQ(,i~~, thiS s,ectlon shall not apply,tmiesstherelg.added,tbthel' tra<J:e4."pJ,'lptiQll.'. immediately before or after the name of that place or country,iq,,~ equally conspicuous manner, with that, name, the n~e Qfthe.!pla.ce ,or country in which the goods. were actually made or. J)l,'OQ'J.eq9;:~ith a statement that they w~re made or produced there. "

(2)
Where
(a)
at the commencement of this Act a trademarkeitl\eflS'relisteted
under the Trade Marks Ordinance or is in uSe to
"md'Icate a
connection in the course of trade between goods and
'the proprietor
of the trade mark; and
(b)
the trade mark is used to indicate a connection in the course of
. trade between the good-s and the'person who is:the piroprietor of
the trade mark or between the goods and a person who is
registered
under section 31 of the Trade Marks Ordinance as a
registered user of the trade mark; and
(c)
the person who is the proprietor of the trade 'mark is the same
person as, or a successor
in title of, the person who is the
proprietor at the commencement
of this Act,

the provisions of this Act with respect to false trade descriptions shall not apply to such trade mark or part of such trade lll8.fk when applied to such goods. "

PART 111

IMPLIED WARRANTY ON SALE OF MARKED GooDS

9. On the sale 'or in the contract for the sale of any goods to whiCh a Implied trade mark or mark or trade description has been applied, the vendor warr:rtyf shall be deemed to warrant that the mark is .a genuine trade mark and :a:kc~~oods not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Act, unless the cCifltrary is expressed in writing signed by or on behalf of the vendor and delivered at the time of the sale or ,contract t,oandaccepted;,by the purchaser.

PART IV

PROVISIONS RELATING TO THE IMPORTATION op~,

lO~ No .person' ,shalliniportint9 "Tanganyika ' for sale any 'goOds-Prohibition

, ; .. .'.' .''.'. ....., . ' ' . , . -' ."" .. : .' .' . of importa

(a)
to which any,forgedt~de mal,'k. or ,false trade tl'escription,,is tion of
".. applied or to which'any tradelPfirk ·ora mark so nearly resembling ~ a trade lllatk as to be likely to deceive is falsely applied; or goo s
(b)
to which there is applied ,any ttade; ttiark Ot',ttade descripti<>il
which contains a director
.indirect reference to any town, place,
district or country other than the town, place; district or country
in which the goods were made or which bear
:anyname'or trade

mark .', of any manufilctufef. , dealer Of ,trader in Tt\tlpnyika. unlesS there is added to ~t trade mark or, trade d~ription

,ilia'conspicuousmal1ner .the Dame of the, country ' ja which such goods were made or produced so as 'to in:dicat~ that they w~ ,made or produced ill, that, ,country .

Conditional . >tl~ ~e ~itii~t~rrl1ay. by drder p~blished,ihthe Gazette. prohi~it ~he

prohibition

llnpOrtation mto Tanganyika for sale of goods ofal1y class or descnption

ofimpon.

tionof uIllesS either Ot', both of the following l"eqwrentents have been compliCki goods With::....(a' 'thtreare ,ap@~ totlie goOdswbrds stati11g t:l~rly the coililtty

, inwhleh-tliey were made or produced and such wOttls aft applied in such manner as may be specified itt the ofdet or. if no maIitlet is specified. in a conspicuous manner;

" (b) the ,goods bear such IUark as IUay be s~med, in the order and ,C'6ruOfni to such standard as ma.y be pte:scli~ in the order.

PART V

INVESTIGATION AND PROCEEr:HNGS

Powers of 12.-(i) It shaH be lawfulfor any inspector. on production of his

entry and

authority, or for any police officer of or above the ra,nk of Inspeetor, to

inspection ent~r Without Warran~ and inspect any prem.jses ~ which , he has ,reason to believe that an , offence against this Act has been or is about to be cODlmitted. and therein to-

(a)
examine goods. and all books; accounts and clocUDlents relating thereto;
(b)
take samples of any goods, and take copi~ of any book. account or documen.t as aforesaid. or part thereof;
(c)
seize. remove and detain any goods which he has reasonabl~ cause to believe may afford evidence 9f an offence against this Act. and any container. receptacle. book. account or document relating thereto;
(d)
requ~ anyoccuwmt of suc~ premises to render such explanations and give such. inforIUatiOQ. relating to any goods tb~rem as ~y

. be reasonably req~ed by sueli inspector or officer in the performance of bis duties.

(2) The! poWer to act under subsection (1) shall only be exerciSed Without Warrant if the inspectOr or officer so aCtiDg hasteas-onable cause to beli~ that the delay oceasiOneti ih obtaining astaroh 'Warrant wo111<4: seriously hinder him in the performance of his duties .

.(3) "Any person who obstructs. Of biiiders arfinspector 01' officer' acdng in pursuance :()fany of tbeprovisions :of this~01'1f1)fwJK>-·'Oftany requisition ullder paragrapb (d) of subsectioQ. (1) wilfully withbold, any

· bif<>nbatiollorgiveS any information knoWihg or ba'vihg rea,sOO to

. . believe it to be false or misleading. shall be guilty ()f all ~~ands~U be liable on conviction to a fine Jiot exC'eecling thtee tfloosand shillings or loa .t:eml ofiQlJ?risor1m.eJit not exceeding three'moathBt or .tE> bOth such

fine and imprisoimient: . .

Provided that no person may be ,required 'to anSWer any , question theamwer to Which may tend to expOse him to an.y criminal charge. pehalty 'or.forfeiture.

No. 20 .. , Merchandise Marks 1963

(4)
Before removing any goods. account or document under the provisions of this section. the inspector or officer removing it shall furnish the peI"SQn in whose custOdy or possession the goods are at the time of removal with awritten receiptthereior; . , .,
(5)
Every seizure under paragraph (c) of sUbsection (1) of this section shall be reported . without unnecessary delay to a magistrate. . .

13•. The court· before whom any person is ~Onyictedof. an 'offence Forfeiture . against this Act may decl~re ~nygood8illrespect ,orhy means of which ~~~~~n the offence was committed ~o be forfeited. .,

  1. If the owner of any goOds or things which. if the owner thereof Forfeitur~ had been convicted. would be liable to forfeiture under this Act is ~=~sor unknown or cannot be found. a charge or complaint .may be .laid for the owner purpose only of enforcing such forfeiture and ,a subordinate court may cause notice to be advertised stating that. rinl~cause is shown to the contrary at the time and place nained in the notice. such goods' or things will be forfeited. and at such time and place the court. unless the owner or any person on his behalf. or other person interested in the goods or things, shows cause to the contrary, may order such goods or things or any of them to be forfeited.
  2. Any goods or things forfeited under this Act may be destroyed ~=! or otherwise disposed of in such manner as the court: by which the same forfeited are forfeited may direct. and the court may. out of any proceeds which may be realized by the disposal of such goods (aU trade marks and trade descriptions being first obliterated), award to any itlllocent party any loss he may have innocently sustained in dealing with such goods.

16.-(1) Where, in any prosecution under this Act, the consent of Bvidence the proprietor of a trade mark is a relevant issue. the onus of proving the consent of such proprietor shall lie on the accused.

(2) In any prosecution for an offence against th$ Act, in the case of imported goods, evidence of the place from which the goods were consigned to Tanganyika shall be prima facie evidence of the place or country in which the goods were made or produced.

  1. No prosecution for an offence against this Act shall be com-Limitati,?n of menced after the expiration of five years next after the date on which pr06CCUtion the offence was alleged to have been committed. '
  2. Where any offence against this Act is committed by a company, Offence!! by firm or other association of individuals, every person who at the time of compames the offence was a director. manager, secretary or other similar officer of such company, firm or association, or who was at that time concerned or purported to act in the management of its affairs, shall be ·severally liable to prosecution and punishment in like manner as · if he ·· had himself···· committed the offence, unless he ·proves··that,the/otlenee. was committed without his consent and that he took all . reasonable steps to prevent its commission.
19.· The Penal COde is hereby amended . by · ·repea:ling Chapter Amendment

XXXVIll thereof. . ... . of

. Penal Code

. . . .. . ... . ... ... ... . Cap. 16 Passed . in the National Assembly on the twerity~fourth day of April,

1963. ci~7S;'if;z,~~;

Printed by the Government Printer, Dar es Salaam.

 

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