R v Gleeson (John Vincent)

Date

3 October 2001

Legislation

Trade Marks Act 1994 s92

Keywords

counterfeiting; sentencing; disclaimer labels; forfeiture order

Counsel

Nicola Gatto, the Crown was not represented

Solicitors

unknown

Judge

Rose, LJ; Butterfield, Cooke, JJ.

Court

Court of Appeal (Criminal Division)

Reported

[2001] EWCA Crim 2023, [2002] 1 Cr App R (S) 112

Summary

Gleeson ran a business making high quality copies of commercially available music and used a computer which could copy 20 CDs at a time for that purpose. The CDs he produced were indistinguishable from those in the shops and it was accepted that he had disposed of around 4000 such CDs to a third party distributor.

Gleeson pleaded guilty to 19 counts contrary to sections 92(1) and 91(2)(c) of the Trade Marks Act 1994 and was sentenced to 30 months' imprisonment concurrent on each count. A forfeiture order was also made in connection with the computer he used so that it could be transferred to the National Crime Squad. He appealed against sentence to the Court of Appeal.

On Appeal Gleeson argued that he thought at the time he started his business that he had found a genuine loophole in the law. The labels he attached to the CDs included an assertion that someone breaking the seal of the goods must have purchased or currently own a legitimate copy of the material of which a copy had been requested. He also argued that, having realised that he was mistaken, he was only going to carry on the counterfeiting until he had made good his initial cash outlay.

Decision

The Court of Appeal held as follows:

• it would be expecting a lot of the court to accept that a label of that kind, in the context of a business of this kind, represented a genuine belief on the defendant’s part that those who were purchasing his goods already had an original and legitimate disk of that of which they were then purchasing a copy;
• ·the Court of Appeal rejected the submission that Glesson would have stopped counterfeiting when he recouped his initial outlay;
• it was appropriate for a deterrent sentence to be set in this case; and
• there was no reason to interfere with Gleeson’s sentence of 30 months

Consequently Glesson’s appeal was dismissed. In relation to the counterfeiting of CDs it is important to note that these cases can raise questions in connection with trade mark use - see the recent House of Lords case R v Johnstone.