R v Keane (Simon Wallace)
Date
18 February 2000
Legislation
Trade Marks Act 1994 s92
Keywords
criminal offences; counterfeit goods; defences; onus; trade mark offences; mens rea
Counsel
S Blackford for the Crown, B Devlin for Keane
Solicitors
unknown
Judge
Mance LJ; Judge Peter Crawford QC (the Recorder of Birmingham); Penry-Davey J
Court
Court of Appeal (Criminal Division)
Reported
[2001] FSR 7
Summary
Keane was convicted of seven offences contrary to s92(1) of the Trade Marks Act 1994 in the Crown Court at Canterbury.
The facts were that on 16th November 1997 Keane was at a boot fair at Sittingbourne, Kent. Evidence was given by a trading standards officer for Kent CC that he visited the boot fair, found the appellant there selling goods, and purchased various items. Count 1 related to a yellow shirt with a sign identical to the registered trade mark of Yves St Laurent Couture, and count 2 to a 100 millilitre cologne spray with a sign identical to the registered trade mark of Tommy Hilfiger Licensing Inc. He purchased them for £10 each. Shortly thereafter he returned and served a notice on the appellant and seized his entire stock.
Keane was sentenced to 150 hours community service on each count concurrent and then appealed against conviction. In interview Keane asserted that he had no reason to believe the goods were not genuine and that there was nothing to arouse his suspicions. The issue in the appeal concerned the extent to which it was necessary to prove Keane's mens rea to make out an offence under s92 (as distinct from a defence under s92(5)).
Decision
The Court of Appeal reviewed the Singh decision and the language of s92(5). It concluded that s92(5) in cases such as the present is capable of providing a broad general defence which is capable of applying to all activities covered in section 92(1)(a), (b) and (c), but that the defence involves the appellant showing that he believed on reasonable grounds that the use of the sign on goods in whichever of the ways mentioned in (a), (b) or (c) it was used or was to be used was not an infringement of the registered trade mark. The only matter which he must be taken to know is the existence of the registered trade mark. In the present case it was not suggested that the appellant was unaware of the existence of the registered trade mark. What was suggested was that he was unaware that it was being infringed. Given that broad interpretation of section 92(5), it is difficult to see how Mr Devlin's submission, that mens rea relating to the fact of infringement should be read into section 92(1), could operate. On his submissions subsection (5) would become largely, if not entirely, redundant, since the onus would always be on the prosecution to prove beyond reasonable doubt the existence of knowledge of infringement under section 92(1).
Accordingly the appeal was dismissed. See also R v Johnstone which considers this case.