WORLD TRADE ORGANIZATION 
ORGANISATION MONDIALE DU COMMERCE 
ORGANIZACION MUNDIAL DEL COMERCIO 
Council for Trade-Related Aspects 
of Intellectual Property Rights IP/N/1/SWZ/E1l 
5 May 2004 
(04-1998) 
Original: English! 
anglais/ 
ingles 
MAIN DEDICATED INTELLECTUAL PROPERTY LAWS AND 
REGULATIONS NOTIFIED UNDER ARTICLE 63.2 
OF THE AGREEMENT 
SWAZILAND 
The present document reproduces the textl of the Merchandise Act No. 24 of 1937, as notified 
by Swaziland under Article 63.2 of the Agreement (see document IPIN/l/SWZ/l). 
Conseil des aspects des droits de proprh~te 
intellectuelle qui touchent au commerce 
PRINCIPALES LOIS ET REGLEMENTATIONS CONSACREES A LA 
PROPRIETlt INTELLECTUELLE NOTIFIEES AU TITRE 
DE L'ARTICLE 63:2 DE L'ACCORD 
SWAZILAND 
Le present document contient le textel de la Loi nO 24 de 1937 sur les marchandises, notifiee 
par le Swaziland au titre de l'article 63:2 de l'Accord (voir le document IPIN/l/SWZIl). 
Consejo de los Aspectos de los Derechos de Pro pied ad 
Intelectual relacionados con el Comercio 
PRINCIP ALES LEYES Y REGLAMENTOS DEDICADOS A LA PROPIEDAD 
INTELECTUAL NOTIFICADOS EN VIRTUD DEL P ARRAFO 2 
DEL ARTiCULO 63 DEL ACUERDO 
SW AZILANDIA 
En el presente documento se reproduce el textol de la Ley de Mercancias, N° 24 de 1937, que 
Swazilandia ha notificado en virtud del parrafo 2 del articulo 63 del Acuerdo (vease el documento 
IPIN/lISWZ/I ). 
1 In English only'/En anglais seulement.!En ingles solamente. IPIN/lISWZIEIl 
Page 2 
THE MERCRA-NDISE MARKS ACT 
Date of commencement: 30th April, 1937. 
An Act to make provisior! against the use of false trade descriptions andforged 
tr ade marks. 
Short title. 
1. This Act may be cited as the },1erchandise Marks Act, 1937. 
Interpretation. 
2. For the purposes of this Act -
"false trade description" means a trade description whicb is false in a material 
respect as regards the goods to which it is applied, and includes every alter­
ation of a trade description whether by way of addition, effacement or 
otherwise \vhere that alteration makes the description false 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 being a false trade 
description within the meaning of this Act; 
"goods" mearrs anything w},ich is subject of trade, manufacture or merchandise; 
"magistrate's court" means a court established under the Subordinate Courts 
Proclamation (Cap. 20); 
"Minister'" means the Deputy Prh"11e Minister; 
"name" includes an abb:reviation of a name; 
"person", "manufacturer", "dealer", or "trader" and "proprietor" include any 
body of persons corporate and unincorporate; 
"trade description" means any description, statement or other indication direct 
or indirect as to -
(a) the number, quantity, measure, gauge or weight of any goods; or 
(b) the place or country in which any goods were made or produced; or 
Cc) the mode of manufacturing or producing any goods; or 
Cd) the material of which any goods are composed; or 
(e) any goods being the subject of an existing patent, privilege or 
copyright; or 
(j) the standard of quality of any goods according to a classification 
commoIily used or recognised in the trade; or 
(g) the fitness for purpose, strength, performance or behaviour of any 
goods; 
and the use of any fig'2re, ,vord or mark whjch according to the custom of 
the trade is commonJy taken to be ail i::ldication of any of the above matters 
~haIl be deemed to be a trade description Vi'ithin the meaning of this Act; IPINIl/SWZ/EIl 
Page 3 
"trade mark" means a trade mark registered in the register of Trade marks kept 
under the Trade Marks Registration Proclamation, 1902, of the Transvaal, 
as formerly in force in Swaziland, or under Part vTIof the Patents, Designs 
and Trade Marks Act, and includes any trade mark which, either with or 
without registration, is protected by law in the United Kingdom or in any 
part of the British Commonwealth or a foreign state, to which section 103 
of the Patents, Designs and Trade Marks Act, 1883, of the United Kingdom, 
are under Order in Council for the time being applicab1e (which section is 
set forth in the Schedule). 
(2) The provisions of this Act relating to the application of a false trade description 
to goods shall extend to the application to goods of any such figures, words or marks or 
arrangement or combination thereof whether including a trade mark or not as are reasonably 
calculated to lead persons to believe that the goods are the manufacture or merchandise 
of some person other than the person whose manufacture or merchandise they really are. 
(3) The provisions of this Act relating to the application of a false trade description 
to goods or relating to goods to which a false trade description is applied shall extend to the 
applicatjon to goods of any false name or initials of a person and to goods with the false 
name and initials of a person applied in like manner as if such name or initials were a trade 
description, and for the purpose of this enactment the expression false name or initials means 
as applied to any goods any narpe or initials of a person which -
Offences. Ca) are not a trade mark or part of a trade mark; and 
(b) are identical with or a colourable imitation of the name or initials of a 
person carrying on business in connection with goods of the same description 
and not having authorised the use of such name or initials; and 
(c) are either those of a ficticious person or of some person not bonafide carrying 
on business in connection with such goods. 
3. (1) Every person who -
(a) forges any trademark; or 
(b) falsely applies to goods any trade mark or any mark so nearly resembling 
a trade mark as to be calculated to deceive; or 
Cc) makes any die, block, machine or other instrument for the purpose of for­
ging or of being used for forging a trade mark; or 
Cd) applies any false trade description to goods; or 
Cc) disposes of or has in his possession any die, block, machine or other instru­
ment for the purpose of forging a trade mark; or 
(j) manufactures, imports or has in his possession any labels for the purpose 
of applying them contrary to the provisions of this Act; or 
Cg) causes any of the things above in this section mentioned to be done; 
shall, subject to the provisions of this Act and unless he proves that he acted "''ithout intent 
to defraud, be guilty of an offence. 
(2) Every person who sells or exposes, or has in his possession, for sale or any 
purpose of trade or manufacture any goods or things to which any forged trade mark or IP /N/1/SWZIEIl 
Page 4 
false trade description is applied or to which any trade mark or mark so nearly resembling 
a trade mark as to be calculated to deceive is falseJy applied, as the case may be, shall be 
guilty of an offence, unless he proves that -
Ca) having taken all reasonable precautions against committing an offence 
against this Act he had at the time of the commission of the alleged offence 
no reason to suspect the genuineness of the trade mark or trade description; 
and 
Cb) on demand made b3' or on behalf of the complainant he gave all the inform­
ation in his power with respect to persons from whom he obtained such 
goods or things; or 
(c) otherwise he had acted innocently. 
(3) Any person convicted of any of the offences mentioned in sub-section (1) or (2) 
shall be liable to -
(a) a fine not exceeding four hundred rand, or, in default of payment thereof 
to imprisonment not exceeding two years, or to both such fine and imprison­
ment; and 
Cb) forfeiture at the discretion of the court of every article, instrument or thing 
by means of which or in relation to which the offence has been committed. 
Presumptions. 
4. (1) A person shall be deemed to forge a trade mark who either -
Ca) \\ithout the assent of the proprietor of the trade mark makes that trade 
mark or a mark so nearly resembling that trade mark as to be calculated to 
deceive; or 
Cb) falsifies any genuine trade mark whether by alteration, addition, effacement 
or othenvise; 
and any trade mark or mark so made or falsified is referred to in this Act as a forged trade 
mark: 
Provided that in any prosecution for forging a trade mark the burden of proving the 
assent of the proprietor shaJIlie on the accused. 
(2) A person shall be deemed to apply a trade mark or mark or trade description to 
goods who-
Ca) applies it to goods themselves; or 
Cb) applies it to any covering, label, reel or other thing in or with which the 
goods are sold or exposed or had in possession for any purpose of sale, 
trade or manufacture; or 
Cc) . places, encloses or annexes any geJds which are sold or exposed or had in 
possession for any purpose of sale, trade or manufacture in with or to any 
covering, label, reel or other thing to which a trade mark or trade description 
has been applied; or 
Cd) uses a trade mark or mark or trade description in any manner calculated to 
lead to the belief that the goods in connection with v/hich it is used are 
t"designated or described by tl~at trade mark or mark or trade description. JP /NI 1 ISWZ/E/l 
Page 5 
(3) The expression "covering" includes any stopper, cask, bottle, ve~sel, box, cover, 
capsule, case, frame or -wrapper; and the expression "label" includes any band or ticket. 
(4) A trade mark or mark or trade description shall be deemed to be applied whether 
it is woven, impressed or otherwise worked into, or annexed or affixed to the goods or to any 
covering, label, reel or other thing. 
(5) A person shall be deemed falsely to apply to goods a trade mark or mark, who 
without the assent of the proprietor of a trade mark, applies such trade mark or a mark so 
nearly resembling it as to beca1culated to deceive, but in any prosecution for falsely applying 
a trade mark or mark to goods the burden of proving the assent of the proprietor shall lie 
on the accused. 
Defences. 
5. . If a person is charged with making any die, block, machine er other instrurr:.ent for 
the purpose of forging or being used for forging a trade mark er witf falsely applying to goods 
any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive, 
or with applying to goods any false trade description, or causing any of the things in this 
section mentioned to be done and proves -
Ca) that in the ordinary course of his business he is employed on behalf of other 
persons to make dies, blocks, machines or other instruments for makil1g or 
being used in making trade marks or as the case may be to apply marks or 
descriptions to goods, and that in the case which is the subject of the charge 
he was so employed by some person resident in Swaziland and 'A'as not 
interested in the goods by way of profit or commission dependent on the 
sale of such goods; and 
Cb) that be took reasonable precautions against committing the offence charged; 
and 
Cc) that be had at the tin-le cf the commission of the alleged offence no reason 
to suspect the genuineness oftbe trade mark, or mark or trade description; 
and 
Cd) that he gave the complainant all the iIl..formation in his povver with respect 
to the persDns on whose behalf the die, block, machine or other LTlstrument 
was made or the trade IDm-k, mark or description v~as applied; 
he shall be discharged from the. prosecution but shall be liable to pay the costs inCllrred by the 
complainant unless he has given due notice to him that he wjI} rely on the above defence, 
Country of origin of watches. 
6. If a watch case has thereon any words or marks which constitute or are by common 
repute considered as constituting a description ef the country v/bere it was made and the 
watch bears no description of the country where it was made, those words er marks shall 
prima facie be deemed to be a description of that country \Ovithin the meaning of this Act, 
and the provisions of this Act ,'lith respect to goods to which a false trade description has 
been applied and with respect TO selling or exposing for or having in possession for sale or 
any purpose of trade or manufacture goods ,vitb a false trade description shall apply accord­
ingly and for the purposes of tbis section tl1e expression "watch" means all that porrion of a 
watch which is not the watcb case, IPINIl/SWZ/E/l 
Page 6 
Necessar.V allegation. 
7. In any indictment, charge, pleading, proceeding OT document in which any trade 
mark or forged trade mark is intended to be mentioned, it shall be sufficient wjthout further 
description and without any copy or facsimile fo state that trade mark or forged trade mark 
to be a trade mark or forged trade mark. 
Proof of origin. 
8. In any prosecution for an offence against this Act evidence of the port of shipment 
.of imJ:.iorted goods shall be prima facie evidence of the place or country in which the goods 
were made or produced. 
Accessory to crime. 
9. Any person who being 'yvithiu Swaziland procures, counsels, aids, abets or is acces­
'sory to the cotrnnission outside Swaziland of an act 'which if committed in S"vaziiand would 
under this Act be an offence shall he guilty of that offence as a principal, and shall be liable 
to be indicted, proceeded against, tried and CODvleted in aIlY pJace in Swaziland in "vhieh he 
may be as if the offence had been there committed. 
Power of entry and search. 
10. (1) If upon information of an offence against this Act there has been issued in due 
form of law either a summons :requiring the person charged by such information to appear 
to answer to the same or a v/arrart for the arrest of such person, and either the person issuing 
'such summons or warrant or any other officer of the law, empowered to issue criminal process, 
is satisfied by infoD11ation on oat%l 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 person charged or arrested or otheflly-ise in his possession or under 
. bis control in any plate, the person issuing such summons or v/arrant or other such officer 
as aforesmd as the case may be, may issue a wan-ant under his hand by virtue of which any 
police officer named or referred to in the warrant may enter' such house, premises or place 
at any reasonable time by day and search there for and seize and take away those goods or 
thillgS. 
(2) Any goods or things seized under such \varrant shall be brought before a magis­
trate's court having jUJ.""l.smction in respect of such offence for the purpose of its being deter­
mined whether the same are or are not liable to forfeiture under this Act. 
Forfeitllre. 
(3) If the owner-of any goods or thiDgS which if the owner thereof had been convicted 
would be liable to forfeiture under this Act is lmknown or cannot be found, an information 
or complaint may be laid for the purpose only of enforcing such forfeiture and the clerk to 
.a magistrate's court of the district in which such goods or things shall be found may cause 
notice to be advertised in the Gazette statin'g that unless cause is sbo"WIJ. to the contrary at 
the time and pJace named in the notjce such goods or things will be forfeited, and at such time 
and place the court may, unless the owner or any person on his behalf or other person interest­
,ed in the goods or things show cause to the contrary, order such goods or things or anyone 
-of them to be'·Torfeiled. IPINI1 ISWZ/EI1 
Page 7 
(4) Any goods or things forfeited under this Act may be destroyed. or otherwise 
disposed of in such manner as the court by whkh the same are forfeited may"direct and the· 
court may out of any 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. 
11. On any prosecution under this Act the court may order costs to be paid to the 
accused by the complainant or to the complainant by the accused having regard to the inf orm-· 
ation given by and the conduct of the accused and complainant respectively. 
Limitation of action. 
12. No prosecution for an offence against this Act shall be commenced after the 
expiry of three years after the commission of the offence or one year after the first discovery 
thereof by the complai:hant whichever first occurs. 
Prohibition of imporatiol1. 
13. (1) All goods liable to forfeiture under tbs Act and also all goods of foreign manu..c 
facture bearing any name or trade mark being or purporting to be the name or trade mark of 
any manufacturer, dealer or trader in Swaziland unless such name or trade mark is accom­
panied by a definite indication of the country in which the goods were made or produced 
. are hereby probbited to be imported and if any such goods are be imported contrary to the 
provisions hereof they shall be forfeited. 
(2) The words "goods of foreign. mamifacture" in sub-section (1) shall mean an 
goods manufactured, made or produced 3.t any place outside Swaziland. 
(3) Before detaining any such goods or takiD'g any further proceedings with a view 
to the forfeiture thereof under the law relating to customs, the officers of customs may require 
the regulations under this section, whether as to information, security, conditions or other 
matters, to be complied with and may satisfy themselves in accordance with these regulations 
tbat the goods are prohibited by this section to be imported. 
(4) The Minister may by notice in the Gazette make regulations either general or 
special relating to the detention and forfeiture of goods the importation of which is pro­
hibited by this section and the conditions if any to be fulfilled before such detention and 
forfeiture, and may by such regulations determine the inioID1ation, notices and security to be 
given and the evidence requisite for any of the purposes of tbis section and the mode of 
verification of such evidence. 
(5) If on any goods thel-e is a name which is identical v/lth or a colourable imitation 
of the name of a place in Sv'ilaziland that name unless accompanied by the name of the country 
in which such place is situate shall be treated for the purposes of This section as if it were the 
name of a place in Swaziland. 
(6) If any goods which if sold would be liable to forfeiture under this Act are import­
ed iDto Swazila...TJ.d, aDd the goods bear any name or trade mark being or purponing to be 
the name or trade mark of any manufacturer dealer or trader in Swc.ziland, and the director 
of c'J.stoms a.Ll.d excise is upon representations made to hL.u satisfied tha.t the me of the name IPINIlISWZ/EI 1 
Page 8 
or trade mark is fraudulent, the proper olDcer of customs and excise may require the it-nporter 
of the goods or his agent to produce any docmnents in his possession relating to the goods 
and to furnish information as to the Dame and address of the person by \vhom the goods 
·were consig..l1ed to Swaziland and the name and address of the person to whom the goods 
were sent in Swaziland; and if the impmter or his agent fails within fourteen days to comply 
with any such requirement he shall for each offence forfeit the sum of two hundred rand. 
(7) Any information obtained from the importer of the goods or his agent under 
this section or from any other source may be COll1.L""11Uuicated by the cIirector of customs to 
any l'1eTSOD \J\.Iho-se nan.1e or trade D1arI:: is alleged to ha-r,,'e been used OT i11fringed. 
(8) The regulatim1s made under this sectioD may app}:y to aJI goods the importation 
of \\'i:lich is prohibited by this sectioll, or different regulations may be made regarding dit-'ferent 
classes of such goods or offences in tela.tion to such goods. 
(9) The regulations may provide for the informant reL'"11bursing the director of 
customs a11 e;:penses a.nd damages incurred in respect of any detention made on his information 
aDd of any proceedings cOl1sequenL on such detention. 
14. OD. the sale Of in the contract for the sale of any goods to which a trade mark, or 
mark or trade, description has been applied the vendor shaH be deemed to warrant that the 
mark. is a gel1l1h"1e trade mark. and. i10t forged. or false.ly· applied, ·or tbat tb.e trade description 
is not a false trade description within the meaning of this Act; unless the contrary is expressed 
in some writing signed by or on behalf of the vendor and delivered at the time of the sale 
or contract to and accepted by the vendee. 
Saving of existing rights. 
15. If at the commencement of this Act a trade description is la\vfully and generally 
applied to goods of a particular class or method of manufactme of such goods the provisions 
of this Act relating to false i.rade descriptions shaI1 not app1y to sl1ch trade description wben 
so applied: 
Provided that where such tTade description includes the name of a place or country 
aDd is calculated to mislead as to the place or country ,",vhere the goods to which it is applied 
were actually made or produced, and the goods are Dot actual1y made or produced in that 
pJace or colilltry this section shall not apply lli'11ess there is added to the trade description 
immediately before or after the name of that place or country, in an equally conspicuous man­
ner with that name, the natne of the place or country ill which the goods were actually made 
or produced with a statement tbat they were Il:mde or produced there. 
Exemption. 
16. The Minister may, by notice in the Gazette at the request of the goveInment of any 
other country exempt under such regulations as he may approve aDY goods or things imported 
directly into such country while in transit through Swaziland: 
Provided that goods or tllLlgS so exempted sball in case of re-importatioD into Swazi­
laud become sL1bject to this Act. Miscellaneous savings. IPIN/1/SWZ/E/l 
Page 9 
17. (1) This Act shail not exempt any person from any action, suit or other proceeding 
which might but for this Act be brought against him. 
(2) Nothing in this Act shall entitle any-person to refuse 10 make a complete dis­
covery, or to answer any question or interrogatory in any action, but such discovery or answer 
shall not be admissible in evidence against such person in any prosecution for an offence 
against this Act. 
(3) Nothing in this Act shall be construed so as to render liable to any prosecution 
or punishment any servant of a master resident in Swaziland who bona fide acts in obedience 
to instructions of such master and on demand made by or on behalf of the prosecutor has 
gjven full information as to his master. 
Allegation of Royal Warrant. 
18. Any person who falsely represents that any goods are made by a person holding a 
Royal Warrant or for the service of His lv[ajesty or of the Ngwenyarna or of the Ndhlovukati 
or any of the Royal Family or of the Government shall be liable on sUITlmary conviction to a 
penalty not exceeding forty rand aI, in default of payment, to imprisofullent for a period Dot 
exceeding four months. 
SCHEDULE 
[Being section 103 of the Patents, Designs and Tr{!ae j'yfarks Act, 1883 afthe United Kingdom.] 
If Her Majesty is pleased to make any arra~gement whh the Government er Govern­
ments of any foreign State or States for mutual protection of inventions, cesigns and trade 
lllarks or any of tllenl, then any pe-rSCIl \vbo has 2.pplied for protection for any il"lVeIltiGn~ 
design or trade mark in any such State shall ce entitled to a patent faT his invention or to 
registration of his design or trade mark (as the case may be) under this Act in priority to 
other applicants; and sl.lch patent Of regist':-3tiDJl 5118.11 have tl1e S3.IJ:le date as the date of tb.e 
protection obtailled in such foreigll State: ?r0\ljcled t11at his app1jcaticn is made ill tile C2.se 
of a patent yvithin seven Dl0TIt11S 2 .. D.cl iD. the case of 2. desjgn. or tro.de rIlark \;:-ithin fOUT illonth.s 
fTom his applying for protectiol1 in tl1e [oreig:J. Sta.te' \-vith v,tIlle11 the 2.rra:::gement is in force: 
Provided that nothing in this section CGntaiIlcd sI-}aU entitle tbe patentee or proprietor of the 
design or trade Inarlz to recover darrlages for infririgelTlellts l-:appenirlg prior to the date of 
the actual acceptance of 11is COI2lplete speci.fication or the actual regist~2.ticn of fiis desjgn 
or trade mark in this country as the case may be. 
The pIiblicatioD in tb.e IT:uit-ed IZingdoITI or the Isle of Ivfan durir:g the respective 
pericds aforesaid of any description of tl1e iDvetitioIl or the use tbe-rein durir;.g SUCll periods 
of tile uiv'entiQD er tl-Je. exhibitioIl or use therein curing such periods ef the design er the· 
publication tlierein during such periods of a description. c·r represen.tatiC!1 of the design or 
tb.e use therei:! during sl.lcl1 periods of t~Je trZlGe ::J.'J.2.Tk shaH not iD'/2.lidate tr;e pater:t \vl1.lc11 
may be grfu~ted for tbe inve.ntiDIl Ol-the r-~gistraticD ef t11e design or t~ade rr:2.r1:._ 
TIle app1ication for tbe gra.nt of a patent or th.e regi-stT3.tioD -of a design cr the regi.s­
tration of a trade mar-le cr:der this Section. rn~st t·e il~[tde in tt.e S2-se lYic!.D::er 2.S 2.:2 CrCiD.3.ry 
application u.nder this .<.A.l..ct: Provided tbat iD tIle C2.se of trade 1112.rks an~I trade 1712Ik t11e 
registration of vvl1ich 112.S been duly applied fo: rn TD.e country of OTlgJD Il12.J'· be registered 
under this Act. 
T-he provisions of thjs section shaD apply onlY in tbe C2.se of those foreign States in 
respec:t to "vvhich Her Ivfajesty shail froITl til.i:'~ to ti~:1e b~/ Order iIl ~:='oUTIc:il decl2-re tbe~l te be 
applic2ble and s-:) long only in the C3.se of each State 2S the Order El Cou:ccil shall CODfll1ue: 
in force \vitb respect to that State.