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New guidelines to sentence trade mark offences publishe
  • Aug 9, 2021
  • Latest News

Two new sentencing guidelines for sentencing individuals or companies that sell or possess counterfeit goods intended for sale were published by the Sentencing Council, following consultation.

Under the new guidelines, offenders who run a sophisticated operation or risk significant harm – including risk of serious physical harm or death to end users – will receive the highest level of sentences.

The new guidelines, which apply to using a trade mark without the owner’s consent contrary to section 92 of the Trade Marks Act 1994, will be used in all courts across England and Wales from 1 October 2021.

The guidelines will replace the current guideline published in 2008, which is used in magistrates’ courts and applies to individuals only. They will apply to adults only.

Sentencing Council member, District Judge Mike Fanning, said:
“Selling counterfeit goods may appear to be a victimless crime, but it harms not only the owner of the trade mark but also legitimate traders and – in some cases -can put the people who buy them at risk of serious harm.

“The new guidelines, which will for the first time apply to organisations, will  enable courts to impose sentences that are consistent and proportionate  in these cases which can be complicated and, by reason of the relative infrequency with which they come before the courts, unfamiliar  to many sentencers.”

Director of Policy for the Association of Chief Trading Standards Officers, Wendy Martin said:
 “We welcome these sentencing guidelines for the offence of unauthorised use of a trade mark which will ensure a consistency of approach in sentencing these often complex cases. Selling counterfeit goods is not a harmless activity and can have a significant financial impact on the trade mark owner and genuine traders while exposing consumers to dangerous or substandard products.”

The cases vary from the very unsophisticated such as selling a few obviously fake items on a market stall or online, to highly organised and profitable businesses manufacturing or importing a large quantity of high-quality counterfeit ‘designer’ goods. They may also relate to possession of labels or packaging bearing trademarks rather than the counterfeit goods themselves.

Typical counterfeit goods include clothes, shoes or handbags and belts, but could also include products like computer games, toys, cosmetics, cigarettes and tobacco, car parts and electrical equipment. Counterfeit goods are unlikely to have undergone the same safety tests as genuine goods and therefore may risk causing injury.

The new guidelines assess harm based on the monetary value of the counterfeit goods with reference to the retail value of equivalent genuine goods, with seriousness increased by any significant additional harm suffered by the trade mark owner, or risked by purchasers/end users of the counterfeit goods.