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48 1931

MERCHANDISE MARKS ACT, 1931

PART VI.

Provisions in relation to offences.

Statutory defences.

22. —(1) Save as otherwise provided by this Act, where a person is charged with having committed an offence under this Act it shall be a good defence to such charge for such person to prove—

(a) (i) that having taken all reasonable precautions against committing such offence he had at the time of the commission of the acts alleged to constitute such offence no reason to suspect that the goods in respect of which such offence is charged were goods to which the provisions of this Act relating to the sale of imported goods bearing name or trade mark of Saorstát Eireann manufacturer or trader, or place name in Saorstát Eireann or, a restriction on sale order applied;

and

(ii) that on a demand made by or on behalf of the prosecutor he gave all information in his power with respect to the persons from whom he obtained the goods;

or

(b) that otherwise he had acted innocently.

(2) Save as otherwise provided by this Act, where a person being an employer or principal is charged with having committed an offence under this Act it shall be a good defence to such charge for such person to prove—

(a) that he used due diligence to prevent the commission of the acts alleged to constitute an offence; and

(b) that the acts alleged to constitute such offence were not done by him personally; and

(c) that the said acts were done without his consent, connivance or wilful default; and

(d) that on service of the summons on him he gave to the prosecutor all information in his power with respect to the person who did the said acts.

(3) Save as otherwise provided by this Act where a person being a servant or employee is charged with having committed an offence under this Act it shall be a good defence to such charge for such person to prove—

(a) that he was in the employment of another person (in this sub-section referred to as the employer);

and

(b) that the acts alleged to constitute such offence were committed by him in the course of and for the purposes of such employment;

and

(c) that the said acts were committed by him in obedience to the express orders of the employer;

and

(d) that on service of the summons on him he gave all information in his power with respect to the matters mentioned in the foregoing paragraphs.

(4) Save as otherwise provided by this Act where a person being a wholesale dealer is charged with having committed an offence under this Act in relation to the sale of any goods it shall be a good defence to such charge for such person to prove—

(a) that such sale was a sale wholesale; and

(b) that the goods were sold to the purchaser on an undertaking in writing that they would be exported or re-sold for exportation to a place outside Saorstát Eireann.

Any document containing an undertaking to the above effect shall, if it purports to be signed by the purchaser and specifies the usual business address of the purchaser, on production thereof be prima facie evidence of such undertaking.

Penalties for offences under this Act.

23. —Every person guilty of an offence under this Act shall be liable on summary conviction thereof, in the case of a first offence to a fine not exceeding five pounds, and in the case of a second or any subsequent offence to a fine not exceeding twenty pounds, and the Court may, in any case order the goods in relation to which the offence was committed to be forfeited.

Search warrant and additional provisions as to forfeiture.

24. —(1) Where upon information of an offence under this Act a Justice of the District Court has issued either a summons requiring the defendant charged by such information to appear to answer to the same, or a warrant for the arrest of such defendant, and either the said Justice on or after issuing the summons or warrant, or any other Justice of the District Court, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which such offence has been committed are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such Justice may issue a warrant under his hand by virtue of which it shall be lawful for any member of the Gárda Síochána named or referred to in the warrant, to enter such house, premises or place at any reasonable time by day, and to search there for and seize and take away those goods or things, and any goods or things seized under any such warrant shall be brought before a Justice of the District Court for the purpose of its being determined whether the same are or are not liable to forfeiture under this Act.

(2) If the owner of any goods or things which, if the owner thereof had been convicted of an offence under this Act would be liable to forfeiture under this Act, is unknown or cannot be found, any information or complaint may be laid for the purpose only of enforcing such forfeiture, and a Justice of the District Court may cause notice to be advertised stating that unless cause is shown to the contrary at the time and place named in the notice, such goods or things will be forfeited, and at such time and place, a Justice of the District Court, unless the owner or any person on his behalf, or other person interested in such goods or things, shows cause to the contrary, may order such goods or things or any of them to be forfeited.

Disposal of forfeited goods.

25. —Where any goods or things are forfeited under this Act, such goods or things may be destroyed or otherwise disposed of in such manner as the Court by whom the same are forfeited may direct, and the Court may, out of the proceeds which may be realised by the disposition of such goods (all trade marks and trade descriptions being first obliterated) award to any innocent party any loss he may have innocently sustained in dealing with such goods.

Costs of defence or prosecution.

26. —On any prosecution for an offence under this Act the Court may order costs to be paid to the defendant by the prosecutor, or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.

Time limit for prosecutions.

27. —Notwithstanding anything contained in section 10 of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this Act may be commenced within whichever of the following periods is the less, that is to say, a period of three years next after the commission of the offence and a period of one year next after the first discovery of the offence by the prosecutor.

Evidence.

28. —In any prosecution for any offence under this Act in relation to imported goods, evidence of the port of shipment shall be prima facie evidence of the place or country in which the goods were made or produced.