- PART 1‐ PRELIMINARY
- PART II‐ FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED TRADEMARKS
- PART III‐ ENFORCEMENT
- Appointment of authorized officer
- Power to enter premises and inspect and seize goods and documents
- Restrictions on the entry and search of domextic premises
- Offences of obstruction and disclosure of information
- Penalties
- Time limit for prosecutions
- Offences by corporations
- Offences due to fault of other persons
- Accessory to offences commited outside Malawi
- Samples
- Evidence by certificate
- Description of a trade mark in pleading, etc.
- Defence mistake, Accident, etc
- Innocent publication of advertisements
- Costs in proceedings
- Goods liable to forfeiture
- Applications for forfeiture
- PART IV‐ MISCELLANEOUS
TRADE DESCRIPTIONS ACT
(Published 4th September, 1987)
Act
No. 18 of 1987
I assent
H.KAMUZU BANDA
LIFE PRESIDENT
28TH August, 1987
ARRANGEMENT OF SECTIONS
SECTION
PART 1‐PRELIMINARY
1. Short title and commencement
2. Interpretation
3. Marketing orders
4. Information to be given in advertisements
PART II – FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED TRADE MARKS
5. Applying a trade description, trade mark or mark to goods
6. Offences in respect of trade descriptions
7. Trade descriptions used in advertisements
8. Offences in respect of trade marks
9. False representations as to supply of goods
10. Prohibited import and export of certain goods
11. Power to exempt goods sold for export
Part III‐ ENFORCEMENT
13. Appointment of authorized officers
14. Power to enter premises and inspect and size goods and documents
15. Restrictions on the entry and search of domestic premises
16. Offences of obstruction and disclosure of information
17. Penalties
18. Time limit for Prosecutions
19. Offences by corporations
20. Offences due to fault of other person
21. Accessory to offences committed outside Malawi
22. Samples
23. Evidences by certificate
24. Description of trade mark in pleading
25. Defence mistake, accident, etc.
26. Innocent publication of advertisements
27. Costs in proceedings
28. Goods liable to forfeiture
29. Application for forfeiture
PARTY IV – MISCELLANEOUS
30. Trademarks containing trade descriptions
31. Definition Orders
32. Saving for civil rights
33. Compensation for loss of goods seized under section 13
34. Regulations
35. Repeal
An Act to prohibit false trade descriptions, false marks and misstatements in respect of goods provided in the course of trade; to confer power to require information or instruction relating to goods or to be included in advertisements; to restate the law relating to forgery of trade marks; to repeal the Merchandise Marks Act; and for purposes connected therewith or incidental thereto
ENACTED by the Parliament of Malawi as follows‐
PART 1‐ PRELIMINARY
Short title 1. This Act may be cited as the Trade Descriptions Act, 1987, and shall come into operation on a day
and
commence‐ to be appointed by the Minister by notice in the Gazette.
ment
Interpretation 2.–(1) In this Act, unless the context otherwise requires‐
“advertisement” include a catalogue, a circular and a price list;
“authorized officer” means a public officer appointed under section 12;
“false trade description” means‐
(a) a trade description which is false to a material degree;
such an indication of any of the matters specified in the definition of “trade description” as would be false to a material degree;
matters specified in the definition of trade” description” and., as an indication, would be false to a material degree; (d) a false indicati
goods comply with a standard specified or recognized by any person if there is no such person or no standard so specified, recognized or implied; or (e) a false indication, or anything likely to be tak
g
oods of any class or type‐ (i) being goods in respect of which duty is payable under the laws of Malawi, are supplied free of the
duty so payable in respect of
that class or type of goods; or
(ii) not being goods in respect of which duty is payable under the laws of Malawi, are supplied free of the duty so payable.
“goods” includes vessel, aircraft, things attached to land and growing crops;
“goods in transit” means goods which‐
- (a)
-
are brought into Malawi solely for the purpose of taking them out of Malawi; and
- (b)
-
remain at all times in or on the vessel, aircraft or vehicle in or on which they are brought into Malawi;
“import” means to bring into, cause to be brought, into Malawi;
“premises” includes any place and any stall, vehicle, vessel or aircraft;
“trade description” means an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say‐
- (a)
-
quantity (which includes length, width, height, area, volume, capacity, weight and number), size or gauge;
(b) method of manufacture, production, processing and reconditioning;
(c) composition;
(d) fitness for purpose, strength, performance, behavior or accuracy;
(e) any physical characteristics not included in the preceding paragraphs;
(f) testing by any person and results therefore;
(g) approval by any person or conformity with type approved by any person;
(h) place or date of manufacture, production, processing or reconditioning;
(i) person by whom manufactured, produced, processed or reconditioned;
(j) other history, including previous ownership or use;
“trade mark” means‐
- (a)
-
a trade mark registered in Malawi under the Trade Marks Act;
- (b)
-
a trade mark registered in the register of trade marks kept under or preserved by the Trade Marks Act;
- (c)
-
a trade mark‐
- (i)
-
registered, or in respect of which an application for registration has been made, in a British territory or Convention country; and
- (ii)
-
capable of registration in Malawi under the Trade Marks Act.
(2) For the purposes of this Act‐
(a) goods shall be deemed to have been‐
(i) manufactured in the country in which they last underwent a treatment or process which changed permanently and substantially the shape, nature, form or utility of the basic materials used in their manufacture;
(ii) produced in the country in which they were wholly grown or mined.
(b) the Minister may by order specify‐
(i) in relation to any description of goods, what treatment or process is to be regarded for the
purposes of this Act as resulting or not resulting in a permanent and substantial change in shape, nature, form or utility of the basic materials used in their manufacture;
(ii) in relation to any description of goods different parts of which were manufactured or produced in different countries, or of goods assembled in a country different from that in which their parts were manufactured or produced, in which of those countries the goods are to be regarded for the purposes of this Act as having been manufactured or produced.
(c) a trade description or statement published in any news paper, book or periodical or in any film or sound or televised broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement.
Making orders 3. (1) The Minister may by order require that any good specified in the order shall be marked with
or accompanied by any information (whether or not amounting to or including a trade
description) or instruction relation to the goods and, subject to the provisions of this Act, impose
requirements for securing that the goods are so marked or accompanied, and regulate or
prohibit the supply of goods with respect to which the requirements are not complied with; and
the requirements may extend to the form an manner in which the information or instruction is to
be given.
(2) Where an order under this section is in force with respect to goods of any description, any
person who, in the course of any trade or business, supplies or offers to supply goods of that
description in contravention of the order shall be guilty of an offence.
(3) An order under this section may make different provision for different circumstances and
may, in the case of goods supplied in circumstances where the information or instruction
required by the order would not be conveyed until after delivery, require the whole or part
thereof to be also displayed near the goods.
Information to 4. (1) The Minister may by order require that any description of advertisements of any goods
be given in specified in the order shall contain or refer to information (whether or not amounting or
advertisements including a trade description) relating to such goods and subject to the provisions of this Act
impose requirements as to the inclusion of that information or of an indication of the means by
which it may be obtained.
(2) An order under this section may specify the form and manner in which any such
information or indication is to be included in advertisements of any description and may make
different provision for different circumstances.
(3) Where an advertisement of any goods to be supplied in the course of any trade or business
fails to comply with any requirement imposed under this section, any person who publishes the
advertisement shall be guilty of an offence.
PART II‐ FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED TRADEMARKS
Applying a trade 5. (1) A person applies a trade description or trade mark or mark to goods if he‐
description , (a) affixes or annexes it to or in any manner marks it on or incorporates it with‐
trade mark or (i) the goods themselves; or
mark to goods (ii) anything in, on or with which the goods are supplied;
(b) places the goods in, on or with anything which the trade description or trade mark or mark
has been affixed or annexed to, marked on or incorporated with, or places any such thing with
the goods;
(c ) uses the trade description or trade mark or mark in any manner likely to be taken as
referring to the goods; or
(d) makes in any affidavit, declaration or writing any statement to the effect that a trade
description or trade mark or mark is applicable to the goods.
(2) for the purpose of subsection (1) (c), an oral statement may amount to the use of a trade
description or trade mark or mark.
(3) Where goods are supplied in pursuance of a request in which a trade description or trade mark
or mark is used and the circumstances are such as to make it reasonable to infer that the goods
are supplied as goods corresponding to that trade description or trade mark or mark, the person
supplying the goods shall be deemed to have applied that trade description or trade mark or
mark to the goods.
Offences in 6.(1) Subject to the provisions of this Act, any person who‐
respect of (a) in the course of any trade or business‐
trade (i) applies a false trade description to any goods; or
descriptions (ii) supplies or offers to supply any goods to which a false trade description is applied; or
(b) has in his possession for sale or for any purpose of trade or manufacture any goods to which a
false trade description is applied,
shall be guilty of an offence.
(2) A person exposing goods for supply or having goods in his possession for supply shall be
deemed to offer to supply them.
(3) Subject to the provisions of this Act, any person who disposes of or has in his possession any
die, block, machine, or other instrument for the purpose of making, or applying to goods a false
trade description commits an offence unless he proves that he acted without intent to defraud.
Trade descript‐ 7. (1) The following provisions of this section shall have effect where in an advertisement a trade
tions used in description is used in relation to any class of goods.
advertisements
(2) The trade description shall be taken as referring to all goods of the class, whether or not in
existence at the time the advertisement is published‐
- (a)
-
for the purpose of determining whether an offence has been committed under section 6(1) (a) (i); and
- (b)
-
where goods of the class are supplied or offered to be supplied by a person publishing or
displaying the advertisement, also for the purpose of determining whether an offence has been committed under section 6 (1) (a) (ii).
(3) In determining for the purpose of this section whether any goods are of a class to which a trade
description used in an advertisement relates, regard shall be had not only to the form and content
of the advertisement but also to the time, place, manner and frequency of its publication and all
other matters making it likely or unlikely that a person to whom the goods are supplied would
think of the goods as belonging to the class in relation to which the trade description is used in the
advertisement.
Offences in 8. (1) Subject to the provisions of this Act, any person who‐
respect of (a) forges any trade mark;
(b) falsely applied to any goods any trade mark or any mark so nearly resembling a trade
mark as to be calculated to deceive;
(c) makes any die, block, machine or other instrument for the purpose of forging, or of being used
for forging, a trade mark;
(d) disposes of or has in his possession any die, block machine or other instrument for the purposes
of forging a trade mark; or
(e)causes to be done anything referred to in paragraph (a),(b), (c) or (d),
shall be guilty of an offence unless he proves that he acted without intent to defraud.
(2) Subject to the provisions of this Act, any person who sells or exposes or has in his possession for
sale or for any purpose of trade or manufacture, any goods to which any forged trade mark is
applied, or to which any trade mark or mark so nearly resembling that trade mark as to be
calculated to deceive is falsely applied, shall be guilty of an offence.
(3) For the purposes of this section, a person shall be deemed‐
(a) to forge a trade mark who either‐
(i) without the assent of the proprietor of the trade mark, makes that trade mark or mark so
nearly resembling that trade mark as to be calculated to deceive; or
- (iii)
-
falsifies any genuine trade mark, whether by alternation, addition, effacement or otherwise;
(b) falsely to apply to goods a trade mark if, without the assent of the proprietor of that trade mark,
applies that trade mark to goods,
unless he proves that he acted without infringing the right of the proprietor of the trade mark
Cap. 49:01 conferred by section 9 and 10 of the Trade Marks Act, and the expression “forged trade mark” shall
be construed accordingly.
(4) In any prosecution for an offence under subsection (1) (a) or (b) the burden of providing
the assent of the proprietor shall lie on the accused.
False 9. Subject to the provisions of this Act, any person who, in the course of any trade or business,
representa‐ gives, by whatever means , any false indication, direct or indirect, that any goods supplied by him
tions as to are of a kind supplied to any person, shall be guilty of an offence.
supply of
goods
Prohibited 10. (1) Subject to section 11, no person shall import or export any goods to which a false trade
Import and description or forged trade mark, which expression shall be construed in accordance with section 8 export of (3), is applied.
certain goods
(2) Any person who imports or exports any goods contrary to subsection (1) shall be guilty of an
offence unless he proves that‐
- (a)
-
he did not know, had no reason to suspect and could not with reasonable diligence have found out that the goods are goods to which a false trade description or forged trade mark is applied; or
- (b)
-
the goods are intended for trade or business.
(3) This section shall no apply to any goods in transit
Power to exempt 11. In relation to goods which are intended for dispatch to a destination outside Malawi, section 2 goods sold shall apply as if there were omitted from the matters included in the definition of “trade
for export description” in section 2 those specified in paragraph (a) thereof, and if the Minister by order
specifies any other of those matters for the purposes of this section 6 shall apply, in relation to
goods of that description which are intended for dispatch to a destination outside Malawi, as if
the matters so specified were also omitted from those included in the definition of “trade
description” in section 2.
PART III‐ ENFORCEMENT
Appointment 12. (1) The Minister may appoint any public officer to be an authorized officer for the purpose of of authorized officer this Act.
(2) The Minister may exercise any of the power conferred on an authorized officer under this
Act.
Power to enter 13. (1) An authorized officer may, on production, if required, of evidence of his appointment‐
premises and (a) make such purchases of goods as may appear expedient for the purpose of
inspect and determining whether or not the provisions of this Act are being complied with;
seize goods and
documents (b) for the purpose of ascertaining whether any offence under this Act has been or is being
committed, inspect any goods and enter any premises other than domestic premises;
(c) if he has reasonable cause to suspect that an offence under this Act has been committed,
seize or detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed;
(d)if he has reasonable cause to suspect that an offence under this Act has been committed and for the purpose of ascertaining whether it has been committed, require any person carrying on a trade or business or employed in connexion with a trade or business to produce any books or documents relating to the trade or business and may take copies of, or of any entry in, any such book or document;
- (e)
-
in the case of any premises, vehicle, vessel (other than a ship of war) or aircraft (other
than a military aircraft) in which he has reasonable cause to suspect that there are goods
in respect of which an offence under this Act has been or is being committed‐
- (i)
-
subject to section 14, enter and search such premises;
(ii) stop and search such vehicle; or
- (ii)
-
stop, board and search such vessel or aircraft;
- (f)
-
seize, remove or detain‐
- (i)
-
any goods in respect of which he has reasonable cause to suspect an offence under this has been or is being committed; and
- (ii)
-
anything which he has reason to believe may be required as evidence in
proceedings for an offence under this Act.
(2) An authorized officer may‐
- I.
-
break open any container or open any vending machine for the purpose for exercising his
- II.
-
break open any outer or inner door of any place which he is empowered or authorized by or
- III.
-
forcibly board any vessel or aircraft which he is empowered by this Act to stop, board or
- IV.
-
remove by force any person or thing obstructing him in the exercise of any power conferred
- V.
-
detain any person found in any premises which he is empowered or authorized by or under
- VI.
-
detain any vessel or aircraft which he is empowered by this Act to stop, board and search,
- VII.
-
detain any vehicle which he is empowered by or under this Act to stop, board and search,
powers under subsection (1) (f) to seize goods;
under this Act to enter and search;
search;
on him by this Act;
this Act to search until such place has been so searched;
and prevent any person from approaching or boarding such vessel or aircraft until has been so searched; and
until it has been so searched.
Restrictions on 14. (1) No domestic premises shall be entered and searched by an authorized officer unless‐
on the entry
and search of (a) a magistrate has issued a warrant under subsection (2); or
domestic (b) the Minister has given an authorization under subsection (3)
premises
(2) A magistrate may, if he is satisfied by information on oath that there is reasonable ground
for suspecting that there is in any domestic premises any goods or thing which may be seized,
removed or detained under section 13 91) (f), issue a warrant authorizing and authorized
officer to enter and search the premises.
(3) The Minister may, if he is satisfied that there is reasonable ground for suspecting‐
(a) that there is in any domestic premises any goods or thing which may be seized,
removed or detained under section 13 (1) (f);and
(b) that unless the premises are entered and searched immediately such goods or things
are likely to be removed from the premises,
authorize in writing an authorized officer to enter and search the premises.
(4) An authorized officer authorized under subsection (2) or (3) to enter and search any
domestic premises may take with him such other persons and such equipment as may
appear to him to be necessary.
Offences of 15. (1) Without prejudice to any other Act, any person who‐
obstruction and
disclosure of
Information (a) willfully obstructs an authorized officer in the exercise of his powers or the
performance of his duties under this Act;
(b) willfully fails to comply with any requirement properly made to him by any such
authorized officer; or
(c) without reasonable excuse, fails to give such authorized officer any other assistance or
information which the authorized officer may reasonably require of him for the purpose of the performance of the officer’s function under this Act,
shall be guilty of an offence.
(2) Any person who discloses to any other person‐
- (a)
-
any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of this Act; or
- (b)
-
any information obtained by him in pursuance of this Act, shall be guilty of an offence
unless the disclosure was made‐
(i) in or for the purpose of the performance by him or any other person of functions
under this Act, or
(ii) in the case of paragraph (b), under the direction or order of a court.
(3) Any person who, in giving any such information as is referred to in subsection (1) (c), makes
any statement which he knows to be false shall be guilty of an offence.
(4) Subject to subsection (5), nothing in this section shall be taken to‐
- (a)
-
require a person to answer any question or give any information if to do so might
- (b)
-
compel the production by a solicitor of a document containing a privileged
incriminate that person or the wife or husband of that person; or
communication made by or to him in that capacity or authorize the seizure of any such document in his possession.
(5) A person shall not be excused, by reason that to do so may incriminate that person or the
wife or husband of the person of an offence under this Act‐
(a) from answering any question put to that person in any civil proceedings;
(b) from complying with any order made in any such proceedings,
but no statement of admission made by a person in answering a question put or complying with
an order made shall, in proceedings for an offence under this Act, be admissible in evidence
against that person or (unless they married after the making of the statement or admission)
against the wife or husband of that person.
Penalties 16. (1) Any person convicted of an offence under section 3,4,6,8,9 or 10 shall be to a fine of
K50,000 and to imprisonment for three years.
(2) Any person convicted of an offence under section 15 shall be liable to a fine of K200 and
to imprisonment for six months.
Time limit for 17. No prosecution for an offence under this Act shall be brought after‐
prosecutions
(a) the expiration of 3 years from the date of commission of the offence; or
(b) the expiration of 1 year from the date of discovery of the offence by the prosecution,
whichever is the earlier.
Offences by 18. Where a body corporate is convicted of an offence under this Act, every person who, at the
corporations time of the commission of the offence, was a director, manager, secretary or other similar officer
of the body corporate, or any person who was purporting to act in any such capacity, shall be
deemed to be guilty of that offence unless he proves that the offence was committed without
his knowledge, or that he exercised all du diligence to prevent the commission of the offence.
Offences due 19. Where the commission by any person of an offence under this Act is due to the act or default
to fault of of some other person, that other person shall be guilty of the offence, and a person may be
other persons charged with and convicted of the offence by virtue of this section whether or not proceedings
are taken against the first‐mentioned person.
Accessory to 20. Subject to the provisions of this Act, any person who, in Malawi, procures, counsels aids,
offences abets or is accessory to the commission outside Malawi of an act which if committed in Malawi, committed would be an offence under this Act, commits that offence as a principal and shall be liable to be outside Malawi prosecuted in Malawi as if the offence had been committed within Malawi.
Samples 21. (1)Where any act or omission constitutes both an offence under this Act and an offence
Cap. 34:01 under the Public Health Act, evidence on behalf of the prosecution concerning any sample
procured for analysis shall be admissible in proceedings in respect of the offence under this Act
if, but only if, the provisions of section 107 of the Public Health Act have been complied with.
(2) The Minister may be regulations made under section 33 provide that in any proceedings
for an offence under this Act, in relation to such goods as may be specified in the regulations
(other than proceedings for an offence referred to in subsection (1), evidence on behalf of the
prosecution concerning any sample procured for analysis shall not be admissible unless the
sample has been dealt with in such manner as may be specified in the regulations.
Evidence by 22. (1) The Minister may be regulations made under section 33 provide that certificates issued by certificate such persons, in relation to such matters, as are specified in the regulations shall, subject to this
section, be received in evidence of those matters in any proceedings under this Act.
(2) Such a certificate shall not be received in evidence‐
- (a)
-
unless the party against whom it is to be given in evidence has been served with copy thereof not less than 7 days before the hearing; or
- (b)
-
if that party has, not less than 3 days before the hearing, served on the other party requiring the attendance of the person issuing the certificate.
(3) For the purposes of this section any document purporting to be such a certificate as is referred
to in this section shall be deemed to be such a certificate unless the contrary is shown.
Description of 23. In any information, indictment, pleading, proceeding or document in which any trade mark or a trade mark in forged trade mark is intended to be mentioned, it shall be sufficient, without further description pleading, etc and without any copy or facsimile, to declare that trade mark or forged trade mark to be a trade
mark or forged trade mark.
Defence 24. (1) In any proceedings for an offence under Act it shall, subject to subsection (2), be a defence mistake, for the person charge to prove‐
Accident, etc (a) that the commission of the offence was due to a mistake or to 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 person under his control.
(2) If in any case the defence provided by subsection (1) involves the allegation that the
commission of the offence was due to the act or default of another person or to reliance on
information supplied by another person, the person charged shall not, without leave of the court,
be entitled to rely on that defence unless, within period ending 7 clear days before the hearing,
he has served on the prosecution a notice in writing giving such information identifying or
assisting in the identification of that other person as was then in his possession.
(3) In any proceedings for an offence under section 6 (1) (a) (ii) or (b) it shall be a defence for the
person charged to prove that he did not know, had no reason to suspect and could not with
reasonable diligence have ascertained that the goods did not conform to the description or that
the description had been applied to the goods.
(4) In any proceedings for an offence under section 8 (2) it shall be a defence for the person
charged to prove that he did not know, had no reason to suspect and could not with reasonable
diligence have ascertained that a forged trade mark had been applied to the goods or that a trade
mark so nearly resembling a trade mark as to be calculated to deceive had falsely been applied to
the goods.
Innocent 25. In any proceedings for an offence under this Act committed by the publication of an
publication of advertisement it shall be a defence for the person charged to prove that he is a person whose advertisements business it is to publish or arrange for the publication of advertisements and that he received the
advertisement for publication in the ordinary course of business and did not know and had no
reason to suspect that its publication would amount to an offence under this Act.
Costs in 26. In any proceedings under this Act, the magistrate or court hearing the proceedings may, proceedings notwithstanding any provision of any other Act, make such order as to costs as he or it may think
fit.
Goods liable 27.‐(1)_ Any goods in respect of which an offence under this Act has been committed shall be
to forfeiture liable to forfeiture, whether or not any person has been convicted of any such offence.
(2) Where goods are seized or detained by an authorized officer under section 13 the Minister may
at any time release such goods to the person who appears to him to be the owner thereof or to
the authorized agent of the owner.
(3) Where the goods have not been released and an application for their forfeiture is to be made
under section 28(1) the Minister shall serve notice upon the owner of the goods requiring him to
notify the Minister in writing within the appropriate period under subsection (4) if he claims that
the goods are not liable forfeiture:
Provided that, if there is more than one owner of the goods, it shall be sufficient for the purposes
of this subsection to give notice to one such owner.
(4) Where a notice is served under subsection (3) in respect of any goods seized or detained under
this Act any person (hereinafter in this section and in section 28 referred to as the claimant)
- (a)
-
who is the owner thereof or the authorized agent of the owner; or
- (b)
-
who was in possession of the goods when they were seized or detained,
may, within 30days of the date of the notice, give notice in writing to the Minister that he claims
that the goods are not liable to forfeiture.
(5) If, on the expiry of the period of time specified in subsection (4) for the giving of a notice of
claim under that subsection, no such notice is given in writing to the Minister, and the goods in
respect of which notice is given under subsection (3) have not been released, they shall be
forfeited to the Government.
(6)Where goods seized or detained under section 13 are goods to which a forged trade mark is
applied, or to which a trade mark or mark so nearly resembling a trade mark as to be calculated to
deceive is falsely applied, the Minister shall, wherever reasonably practicable, notify the proprietor
of the trade mark or his agent.
Applications 28. (1) Where a notice of claim is given under section 27 (4) and the Minister does not release the
for forfeiture goods to the claimant, the Attorney General on behalf of the Minister may apply to a magistrate,
or the High Court as the Attorney General thinks fit for the forfeiture of the goods.
(2)Where an application under subsection 91) is made to the High Court, it shall be made and
proceeded with in accordance with rules of court, and may be begun motion.
(3) Where an application under subsection (1) is made to a magistrate, the magistrate shall issue a
summons to the claimant requiring him to appear before a magistrate on the hearing of the
application and shall cause a copy of such summons to be served upon the Attorney General.
(4) If, on the hearing of the application under section (1)‐
- (a)
-
neither the claimant nor any other person appears before the court or magistrate to make a claim and the court or magistrate is satisfied that notice of the date of the hearing issued in accordance with rules of the court under subsection (2) or the summons issued under subsection (3), as the case may be, was duly served on the claimant; or
- (b)
-
neither the claimant nor any person satisfies the court or magistrate that he has a claim,
and the court or magistrate is satisfied that the goods are liable to forfeiture, the court or
magistrate shall order that the goods be forfeited to the Government.
(5) If, on the hearing of the application under section (1), the court or magistrate is satisfied that‐
(a) the goods are liable to forfeiture,; and
(b) a person has a claim thereof,
the court or magistrate may order that‐
- (i)
-
the goods be forfeited to the Government; or
(ii) the goods be destroyed; or
- (iii)
-
any false trade description or forged trade mark applied to the goods be obliterated and thereafter the goods be disposed of in such manner and subject to such condition as the court or magistrate may specify in the order; or
- (iv)
-
any false trade description or forged trade mark applied to the goods be
obliterated and thereafter the goods be released to the owner thereof or the authorized agent of the owner subject to any condition which the court or magistrate may specify in the order.
(6) On the hearing of an application under subsection 91), a certified true copy of the record of any
proceedings in respect of an offence under this Act shall be admissible in evidence.
PART IV‐ MISCELLANEOUS
Trade marks 29. The fact that a trade description is a trade mark, or part of trade mark, does not prevent it containing from being a false trade description when applied to any goods, except where the following
trade conditions are satisfied, that is to say‐
description (a) that it could have been lawfully applied to the goods if this Act had not been entered;
(b) that the trade mark as applied is used to indicate such a connection between the goods and
Cap. 49:01 the proprietor of the trade mark or a person registered under section 9 and 10 of the Trade
Marks Act as a registered user of the trade mark; and
(c) that the person who is the proprietor of the trade mark is the same person as, or a successor
in title of, the proprietor on the commencement of this Act.
Definition 30. Where it appears to the Minister‐
orders (a) that it would be in the interest of person to whom any goods are supplied; or
(b) that it would be in the interest of persons by whom any goods are exported and would not
be contrary to the interest of persons to whom such goods are supplied in Malawi,
that any expressions used in relation to the goods should be understood as having defined
meanings, the Minister may by regulations made under section 33 assign such meanings either‐
- (i)
-
to those expressions when used in the course of a trade or business as, or as part of, a trade description applied to the goods; or
- (ii)
-
to those expressions when so used in such circumstances as may be specified in the regulations,
and where such a meaning is so assigned to an expression, it shall be deemed for the purposes of
this Act to have that meaning when used as is referred to in paragraph (i) or, as the case may be,
paragraph (ii) of this section.
Saving for 31. A contract for the supply of any goods shall not be void or unenforceable by reason only of a contractual contravention of any provision of this Act.
Rights
Compensation 32.‐(1) Where any goods are seized or detained by an authorized officer under section 13, the
for loss of Government shall, subject to this section, be liable to compensate the owner of the goods for any goods seized loss suffered by him by reason that the goods, during the detention, are lost or damaged or have under section 13 deteriorated; but the owner shall not be entitled to compensate for any such loss if‐
(a) the goods are forfeited;
(b) he is convicted of an offence under this Act committed in relation to the goods; or
(c) an order has been made in respect of the goods under section 28 (5).
(2) In any proceedings against the Government in respect of a claim for compensation an any of
the grounds referred to in subsection (1), the amount of the compensation shall be such amount
as is just and equitable in all the circumstances of the case, including the conduct and comparative
blameworthiness of‐
(a) the owner of the goods;
(b) the person in charge or control of the goods at the time they were seized;
(c) the agents of the person specified in paragraphs (a) and (b); and
(d) authorized officers, public officer and other persons concerned.
(3) No proceedings shall be maintainable in respect of any claim for compensation on any of the
grounds referred in subsection (1) unless the proceedings are commenced‐
- (a)
-
in the case of a claim for compensation in respect of goods released to their owner by order
- (b)
-
in the case of a claim for compensation on the ground that any goods were lost during the
of a court or magistrate or by any person having authority to release the goods to him, not later than 6 months after the release thereof;
detention thereof, not later than 6 months after‐
(i) the discovery by the owner of the existence of such ground; or
(ii) the date on which the owner could, by the exercise of reasonable diligence, have
discovered the existence of such ground,
whichever is the earlier.
Regulations 33. The Minister may make regulations for carrying out, or giving effect to, the provision of this Act
Repeal 34.The Merchandise Marks Act is repealed.
Passed in Parliament this thirtieth day of July, one thousand, nine hundred and eight –seven.
P.J.S. Mpaso
Clerk of Parliament