IP Background
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of the mark or
description, and
(d) that, on demand made
by or on behalf of the prosecutor, he gave
all the information in his power with
respect to the persons on whose behalf the
mark or description was applied."
Latter part of this
provision and provision in section 7 are
much similar to the provision in section 486
of the Penal Code. Forfeiture of goods,
providing in this Act is 26: When a person
is convicted under section 482 of the Penal
Code of using a false trade mark, or under
section 486 of that code of selling or
exposing or having in possession for sale or
any purpose of trade or manufacture any
goods or things with a counterfeit trade
mark applied thereto, or under section 487
or section 488 of that code of, or making
use of a false mark or under section 6 or 7
of this Act of applying a false trade
description to goods or of selling, or
exposing or having in possession for sale or
any purpose of trade or manufacture, any
goods or things to which a false trade
description is applied, or is acquitted on
proof of the matter or matters specified in
section 486 of the Penal Code or section 7
or section 8 of this Act, the Court
convicting or acquitting him may direct the
forfeiture to [the State]* of all goods and
things by means of, or in relation to, which
the offence has been committed or, but for
such proof as aforesaid, would have been
committed. When a forfeiture is directed on
a conviction, and an appeal lies against the
conviction, an appeal shall lie against the
forfeiture also.
When a forfeiture is
directed on an acquittal and the goods or
things to which the direction relates are of
value exceeding fifty rupees (kyats) an
appeal against the forfeiture may be
preferred, within thirty days from the date
of the direction, to the Court to which in
appealable cases appeals lie from sentences
of the Court which direct the forfeiture."
In supplemental
provisions, evidence of origin of goods
imported by sea is: 27
In the case of goods brought into the Union
of Burma by sea, evidence of the port of
shipment shall, in a prosecution against
this Act or section 18 of the Sea Customs
Act, be prima facie evidence of the place or
country in which the goods were made or
produced.
Similarly costs of
defence or prosecution is read: 28 " On any
such prosecution as is mentioned in the last
foregoing section, or on any prosecution for
an offence against any of the sections of
the Penal Code which relate to trade,
property and other marks, 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.
Such costs shall, on
application to the Court, be recoverable as
if they were a fine."
Though the provisions
abovementioned are as clear as they are
defined, the most quarrelsome question for
both litigants arisen out of this Act comes
from section 15, which is stated:
“No such prosecution as
is mentioned in the last foregoing section
shall be commenced after the expiration of
three years next after the commission of the
offence, or one year after the first
discovery there of by the prosecutor,
whichever expiration first happens”.
For the question of
limitation of prosecution we might observe
from the cases of firstly Mahomed Jewa
Motalla Vs. H.S. Wilson 29; it was held:
“The accused was
prosecuted once in 1908 and then in 1910
under section 482, Indian Penal Code for
26 BMMA Section 9
* Substituted by the Union of Burma
(Adaptation of Laws) Order , 1948.
27 BMMA section 13
28 BMMA section 14
29 Burma Law Times. Vol 4 p.83. |
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