The purpose of the section is to substitute the defences contained in section 22 of this Bill for the defences which existed in section 2 (1) and (2) of the original Merchandise Marks Act, 1887. In section 2 (1) a number of matters are itemised which may be offences. It is stated that:
These shall, subject to the provisions of this Act and unless he proved that he acted without intent to defraud be guilty of an offence under the Act.
Section 2 (2) states:
Every person who sells or exposes for or has in his possession for sale or any purpose of trade or manufacture any goods or things to which any forged trade mark or false trade description is applied or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied as the case may be, shall, unless he proves—
(a) that having taken all reasonable precautions against committing an offence against this Act, 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
(b) that on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently;
It is considered that in practice it may be relatively easy for people to prove within the terms of those defences that he acted innocently; in fact, in practice it probably would fall on the prosecution to prove the existence of a guilty intent. It is proposed to substitute for the defences which I have just outlined, which necessitate, if one may speak generally, an intent to defraud, the defences contained in section 22 (1) and these defences are to the effect that:
In any proceedings for an offence under section 2 of the Principal Act involving a false trade description or an offence under this Act it shall, subject to subsection (2) of this section, be a defence for the person charged to prove—
(a) that the commission of the offence was due to a mistake or the reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and
(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his control.
The present Bill would lose its effectiveness if the original provisions were retained and careless application of false descriptions without intent to defraud were permitted. Accordingly, the provision has been removed and the defences in section 22 which require a more positive proof by the defendant that the offence was due to a mistake or the reliance on information supplied to him by another person and that he took all reasonable precautions. I am advised that the new form of defences are more appropriate to modern legislative and court practices and will be more effective.