Chapter 14:13

Merchandise Marks Act

Act 9/1974, 22/2001 (s. 4).

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

Section

1. Short title.

PART II

MARKING OFGOODS ANDPROHIBITIONS IN RELATION TOTRADE DESCRIPTIONS

3. Prohibition of application of false trade description.
4. Prohibition of sale of certain goods bearing false trade description.
5. Prohibition of sale of imported goods unless accompanied by indication of origin.
6. Prohibition of sale of certain local goods unless accompanied by indication of origin.
7. Prohibition of import of certain goods.
8. Manner of application of mark.
9. Marking of goods on import.
10. Prohibition of removal of indication of origin from goods.
11. Minister may require indication of origin and compliance with specified standards in the case of certain classes of goods.
12. Minister may require indication of origin of certain goods.
13. Minister may prohibit use of certain marks.
14. Submission of representations by interested persons. PART III

GENERAL

15. Application of trade description.
16. Implied warranty on sale of marked goods.
17. Sale of goods in bottles marked with owner’s name.
18. Appointment of inspectors.
19. Powers of police officers and inspectors.
20. Aiding and abetting offence under this Act.
21. Limitation of period of prosecution.
23. General offence and penalty.
24. Forfeiture of goods.

AN ACT to prohibit the application to goods of false trade descriptions and to prohibit the sale of goods to which a false trade description is applied; to prohibit the importation, sale or distribution of certain goods unless they bear an indication of the origin thereof; to provide for the imposition of controls or restrictions on the marking of goods; and to provide for matters incidental to or connected with the foregoing.

[Date of commencement: 1st January, 1975.]

PART I

PRELIMINARY

1    Short title

This Act may be cited as the Merchandise Marks Act [Chapter 14:13].

                       2    Interpretation

(1) In this Act—

“apply to”, in relation to goods, means—

• to emboss, impress, engrave, etch or print upon; or
• to weave or otherwise work into; or
• to annex or affix to; such goods;

“bottle” means a bottle made of glass, earthenware or plastic material;

“covering” means any bottle, box, capsule, case, cask, frame, vessel, wrapper or other container or cover and includes a band, label, ticket or reel;

“goods” means any thing which is the subject of trade, manufacture or merchandise;

“goods processed externally” means goods—

• assembled in a country other than Zimbabwe; or
• manufactured or produced in a country other than Zimbabwe; or
• the ingredients of which have been mixed in a country other than Zimbabwe and were manufactured or produced in—
  • a country other than that in which they were mixed; or
  • more than one country;

“inspector” means a person who has been appointed as an inspector in terms of section eighteen;

“Minister” means the Minister of Industry and Commerce or any other Minister to whom the President may from time to time assign the administration of this Act;

“mix” includes blend;

“name” includes any abbreviation of, or addition to, a name;

“offending mark”, in relation to—

• goods processed externally, means—
  • a mark applied to those goods containing any name which is or purports to be the name of an assembler, a manufacturer, a producer, a trader, or a mixer in Zimbabwe or the name of any town, place or district in Zimbabwe; or
  • a trade mark or trade description applied to those goods which contains—
    1. a direct or indirect reference to any town, place or district outside Zimbabwe; or
    2. otherwise than for the purpose of indicating the country in which the goods were assembled, manufactured, produced or mixed, a direct or indirect reference to any country;
  • goods assembled, manufactured, produced or mixed in Zimbabwe, means a trade mark or trade description applied to those goods which contains a direct or indirect reference to any town, place or district outside Zimbabwe or to any country other than Zimbabwe;

“sell” includes to offer, advertise, expose, keep, have in possession or prepare for sale or for any purpose of trade or commerce;

“trade mark” means a mark which is used upon or in connection with goods for the purpose of indicating that they are, by virtue of manufacture, production, selection, certification or dealing with or offering for sale, the goods of the proprietor or of a person who is registered in terms of the Trade Marks Act [Chapter 26:04] as the registered user thereof.

(2) Any reference in this Act to a trade description shall be construed as a reference to any description, statement or other indication, direct or indirect, as to— (a) the number or measurement of any goods; or

• the standard of quality of any goods according to a classification commonly used or recognized in the trade; or
• the name of the assembler, manufacturer, producer or mixer of any goods; or
• the place or country in which any goods were assembled, manufactured, produced or mixed; or
• the fitness for purpose, strength, performance or behaviour of any goods; or
• the mode of assembling, manufacturing, producing or mixing of any goods; or
• the material of which any goods are composed; or
• the fact of any goods being the subject of an existing patent, privilege or copyright; and the use of any figure, word or mark which, according to the customs of the trade, is commonly taken to be an indication of any of the matters referred to in paragraphs (a) to (h) shall be deemed to be a trade description for the purposes of this Act.
• Any reference in this Act to a false trade description shall be construed as a reference to a trade description which is false in a material respect as regards the goods to which it is applied and includes any alteration of a trade description, whether by way of addition, effacement or otherwise, where that alteration makes the description false or misleading in a material respect, and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description from being regarded as a false trade description for the purposes of this Act.
• Any person who applies to goods any word, name, letter, figure or mark or any arrangement or combination thereof, whether or not consisting of or including a trade mark or part of a trade mark, which is likely to lead to the belief that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are shall be deemed to apply a false trade description to the goods. PART II

MARKING OFGOODS ANDPROHIBITIONS IN RELATION TOTRADE DESCRIPTIONS

                       3     Prohibition of application of false trade description

• Subject to subsection (2), no person shall apply any false trade description to goods.
• It shall be a sufficient defence to any charge under subsection (1) if the accused proves— (a) that he acted without intent to defraud; or (b) that—
  • in the ordinary course of his business he was employed on behalf of other persons to apply trade descriptions to goods and that, in the case which is the subject of the charge, he was so employed by some other person and was not interested in the goods by way of profit or commission dependent on the sale of such goods; and
  • he took reasonable precautions against committing the offence charged; and
  • he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade description; and
  • on request made by an inspector or police officer, he gave to that inspector or police officer all the information in his power with respect to the persons on whose behalf the trade description was applied.