R v Wakefield, Mark / R v Purseglove, Mark Andrew

Date

11 August 2004

Legislation

Trade Marks Act 1994, ss. 92(1), 92(5), 101(4)

Keywords

Bootlegs; trade mark offences; criminal offences; partnership offences; defences; duplicity in indictment

Counsel

M. Living for Wakefield, J Boumphrey for Purseglove, S Blackford for the Crown

Solicitors:

unknown

Judge:

Latham L.J., Grigson J., Sir Edwin Jowitt.

Court:

Court of Appeal (Criminal Division)

Reported:

[2004] EWCA Crim 2278

Summary:

Wakefield and Purseglove traded together under the name Bionic Records. A trading standards officer purchased a number of compact disks from the Bionic Records store at the Reading Festival and, being suspicious of their authenticity, seized the entire stock under the Copyright Designs and Patents Act 1988.

The appellants were ultimately charged and convicted of six counts of unauthorised use of a trade mark contrary to sections 92(1) and 101(4) of the Trade Marks Act 1994. They were sentenced to four month’s imprisonment on each count concurrently. When the prosecution was originally brought the partnership was charged and the original indictment consisted of charges against Bionic Records and secondly the two individual appellants in separate counts.

At trial it was accepted that the partnership had been wound up and no longer existed and the judge gave leave to amend the indictment so that the paired counts were consolidated.

On appeal the appellants argued that the Trade Marks Act 1994 sets out a procedure that is duplicitous on the basis that there is a distinction between the defences available under s.92 and s.101 and that it would have to be determined whether the defence under s.92(5) would apply to a partnership.

Decision

The Court of Appeal held that:

• s.92 sets out the offence and s.101 deals with the additional procedural steps which arise if a partnership is involved in the alleged offence
• the partnership did not exist at the time of the trial and accordingly no proceedings could be pursued against it;
• ·however, the prosecution correctly proceeded on the basis that the partnership could be said to have been guilty of the offence at the time it was committed and consequently the appellants were liable under s.101(4) as the partnership was guilty;
• any argument that s.101(4) is duplicitous is mistaken - the section does not require that there is a conviction of a partnership, merely that it should have been guilty of an offence; and
• where a partnership is liable it is the mens rea of the persons who commit the offence that is relevant for the defence under s.92(5).