The Sentencing Guidelines Council has published new Sentencing Guidelines (‘the New Guidelines’) to be used for sentencing individuals or companies convicted of selling or possessing counterfeit goods.
The New Guidelines affect those convicted of using a trademark without the owner’s consent contrary to Section 92 of the Trademarks Act 1994 (‘the Act’).
Sukhdip Randhawa of Kangs Solicitors comments upon this law and consequences for breach.
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The Relevant Law | Kangs Trade Mark Offences Solicitors
Section 92(1) of the Act provides:
Unauthorised use of trade mark in relation to goods
An offence is committed by a person who:
- with a view to gain for himself or another, or with intent to cause loss to another and without the consent of the owner of the trademark,
- applies to goods or their packaging a sign identical to or likely to be mistaken for a registered trademark; or
- sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging contains such a sign; or
- has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything by himself or another which would be an offence.
The New Guidelines | Kangs Trading Standards Defence Solicitors
Previously, guidelines had only been used in the Magistrates’ Court in relation to sentencing of individuals only.
However, the New Guidelines, which will come into effect from 1 October 2021, will apply to organisations in addition to individuals.
Individuals | Trading Standards Enforcement Solicitors
The offence is triable either in the Magistrates’ Court or the Crown Court with the maximum sentence which can be imposed being ten years imprisonment.
Culpability & Harm | Kangs Trading Standards Lawyers
When considering sentence, the following considerations will feature:
- Sophisticated offences involving planning where the offender plays a leading role is likely to attract the highest culpability. Little or no organised planning and a limited role will result in a finding of lesser culpability.
- Assessment of harm will involve putting a monetary figure on the offending with reference to the value of equivalent genuine goods. Additionally, any significant additional harm suffered by the trademark owner or purchasers/end users of the counterfeit goods will be taken into account.
- When considering sentence, various categories of equivalent value and culpability will be considered which will determine the length of any prison sentence to be imposed or, in the case of less serious offences, the level of any fine to be imposed.
Organisations | Trading Standards Defence Lawyers
In relation to Organisations, offences are triable in both the Magistrates’ Court and the Crown Court where unlimited fines may be imposed as well as both Compensation Orders and Confiscation Orders in respect of the seized goods.
Offences are categorized in the same manner as that for individuals with high culpability and harm resulting in a starting point for fines of £250,000.
Further Ancillary Orders including Deprivation Orders and Director Disqualification Orders may be imposed.
How Can We Assist? | Kangs National Criminal Defence Solicitors
Given the potential severity of the penalties which may be handed down by the courts to both individuals and companies, it is essential that experienced legal advice and guidance is sought as soon as the possibility of any investigation or court proceedings is known.
For Trading Standards investigations we offer an initial no obligation consultation at our offices in London, Birmingham and Manchester as well as initial consultation by telephone and video conferencing.
Should you require assistance please do not hesitate to contact any of our team: