(1)Subject as hereinafter provided, any person who uses, in connection with any article whatsoever, any mark or description of such a character or in such manner as to be calculated, by reason of the resemblance of that mark or description to a grade designation mark or to any prescribed part of a grade designation mark or by reason of that mark or description being or incorporating the words "national mark" or otherwise, to lead to a false belief that the article is an article of a class to which designations indicating quality have been prescribed by regulations made under statutory powers, shall be liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding twenty pounds, or, on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both imprisonment and fine:
Provided that—
(a)if any person proves that any mark or description was used or registered in connection with any article before the seventeenth day of June, nineteen hundred and thirty-one, or was used in connection with any article before the prescription under the principal Act of any grade designation mark or prescribed part of a grade designation mark resembling that mark or description, he shall not be convicted of ah offence under this section by reason only of the use of that mark or description in connection with that or similar articles; and
(b)proceedings for an offence under this section shall not be instituted except by or with the consent of the Minister or by a council whose duty it is, under section five of the principal Act, to enforce the provisions of this Act, or by an officer appointed by the Minister or by such a council as aforesaid and authorised in that behalf by special or general directions given by the Minister or council, so, however, that any such proceedings may be instituted in Scotland by the procurator fiscal.
In this subsection the expression " prescribed part of a grade designation mark" means a mark prescribed by regulations made under the principal Act as a grade designation mark when used in association with a grade designation (whether with or without the addition of any words or letters), and the expression " registered " means registered under the Trade Marks Acts, 1905 to 1919.
(2)Subsection (3) of section two of the principal Act (which provides, among other things, that a person who uses in connection with any article any mark so nearly resembling a grade designation mark as to be calculated to deceive shall be liable to the punishment therein mentioned but that no person shall be liable for any offence mentioned in that subsection if he proves that he acted without intent to defraud) shall be amended as follows, that is to say—
(i)for paragraph (c) there shall be substituted the following paragraph—
“(c)uses in connection with any article whatsoever, any mark of such a character or in such manner as to be calculated, by reason of the resemblance of that mark to a grade designation mark, to deceive”; and
(ii)for the word " defraud " there shall be substituted the word " deceive. "