West Sussex County Council v Kahraman

Date

13 June 1969

Legislation

s. 92(1)(b), 92(5), 92(6) of the Trade Marks Act 1994

Keywords

Trade mark offences; defences; reasonable belief; reasonable grounds

Counsel

Ms L Bagley appeared on behalf of the Appellant, Ms R Austin appeared on behalf of the Respondent

Solicitors:

Unknown

Judge:

Lord Justice Latham Mr Justice McCombe Mrs Justice Dobbs

Court:

High Court of Justice Queen's Bench Division The Administrative Court

Reported:

[2006] EWHC 1703 (Admin), [2006] All ER (D) 104 Jun, 2006 WL 1546643

Summary:

Kahraman, a Turkish market trader, was charged with four offences contrary to s92(1)(b) and s92(6) of the Trade Marks Act 1994. Kahraman sold and offered to sell items of clothing bearing signs identical to or likely to be mistaken for a registered trade mark. He sought to rely on s92(5) defence. The section states, "It is a defence for a person charged under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark".

Kahraman was an inexperienced trader, with poor English. He bought the items from an unknown man he knew only as "John" but felt he had no reason to doubt the suppliers honesty as he had supplied other local market traders. Kahraman assumed he had paid low prices because the items were "clearance stock" and in addition he had never seen the original genuine articles. He had been visited by a Market Inspector and VAT official who had not alerted him to anything wrong and therefore he felt there was no reason for him to know or suspect that the goods were counterfeit.

The magistrates held that Kahraman had believed on objectively reasonable grounds that he was not infringing trade mark legislation. However, an appeal was granted to the High Court on the question, was there sufficient evidence upon which a reasonable bench could properly find that Kahraman’s belief was on reasonable grounds. The magistrates highlighted that Kahraman had not taken any positive action to ascertain whether the goods were genuine or counterfeit and had taken the risk of purchasing goods from an individual known only as "John".

Decision:

• The High Court allowed the appeal. They decided that Kahramna had not discharged the burden of proof placed on a defendant under s92(5).
• They stated that the defence of s92(5) is not a complicated one, it is a simple concept imposing clear objective standards.
• The court found that the defence could not be made out when a trader buys brand name goods from a disreputable seller at a cheap price and takes no steps to ensure the goods are genuine. The defendant must be judged against the standards of a reasonable trader. The inexperience or subjective beliefs of the defendant cannot be taken into account.
• The court held no reasonable person would have taken the risk of selling the items Kahraman did.

Accordingly Kahraman did not discharge the burden of proof and therefore could not avail himself of the defence.