The Trade Marks Act 1994 (‘the Act’) covers the registration, licensing and infringement of trademarks and imposes criminal liability in respect of some forms of breach.
What Is A Trademark? | Kangs Regulatory Advisory Solicitors
The Act defines a trade mark as:
‘.. any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.
A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging’
Unauthorised Use | Kangs Criminal Defence Solicitors
Section 92 (1), (2) & (3) of the Act states that a person commits an offence 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 trade mark:
- applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark 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 as described above,
- applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used for the labelling or packaging of goods, as a business paper in relation to goods or for advertising goods or
- uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods or for advertising goods or
- has in his possession, custody or control in the course of a business any such material with a view to doing anything by himself or another, that would amount to an offence as described above.
- makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark or
- has such an article in his possession, custody or control in the course of a business knowing or having good reason to believe that it has been, or is to be, used to produce goods or material for labelling or packaging of goods, or as a business paper in relation to goods or for advertising goods.
Defences | Kangs National Criminal Defence Team
Section 92 (4) of the Act states that an offence is not committed unless:
- the goods are goods in respect of which the trade mark is registered, or
- the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the trade mark.
Section 92 (5) provides a defence for a person to show reasonable belief that the use of the sign in the manner in which it was used was not an infringement of the registered trade mark.
Sentencing | Kangs Criminal Trial Solicitors
A person charged with an offence may be tried by either a Magistrates’ Court, where a prison term not exceeding six months and/or a fine not exceeding the statutory maximum may be imposed or a Crown Court which has the power to impose a prison term not exceeding ten years and/or a fine.
How Can We Help? | Kangs National Regulatory Solicitors
At Kangs Solicitors we field a team experienced in dealing with regulatory offences of all nature at all levels throughout the whole process.
It will be evident from the severity of the penalties available if convicted that it is important to be properly represented from the outset.
If we can be of assistance please feel free to contact our team through any of the following who will be happy to assist: