R v Rachel McCrudden

Date

21 February 2005

Legislation

s.92(1) and (5) Trade Marks Act 1994

Keywords

Trade Marks; Infringement; Counterfeit Goods; Statutory Defence; Reasonable Belief; Good Faith

Counsel

S Shotton for the Appellant, G Lucie for the Crown

Solicitors:

Hampshire County Council for the Crown

Judge:

Laws LJ, Dame Heather Steel, Judge Stephens QC.

Court:

Court of Appeal (Criminal Division)

Reported:

[2005] EWCA Crim 466

Summary

Section 92(5) of the TMA 1994 states:

"It is a defence for a person charged with an offence 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."

McCrudden was a market trader has a large quantity of clothing bearing designer labels. A test purchase was made and the stock subsequently seized by the local trading standards. A large proportion of the seized stock was found to be counterfeit. Ms McCrudden faced an indictment of 21 counts variously alleging sale, exposure for sale and possession with a view to the sale of goods bearing registered trade marks without the consent of the proprietor contrary to s.92(1)(b) of the TMA 1994. Ms McCrudden argued that she did not know what a registered trade mark was and had no reason to believe that the goods were not genuine. The Judge held that on the basis of the evidence before him, Ms McCrudden could not rely on the statutory defence under s.92(5). She therefore changed her plea to guilty. Ms McCrudden then appealed against a 60 hour community punishment order on the basis that the Judge was wrong to find that the statutory defence was not available to her.

Decision:

• S.92(5) afforded a positive and specific defence and did not provide a defence of good faith. It required positive proof that the Defendant knew that the trade mark was in place but that he or she had a reasonable belief of no infringement.
• Section 92(5) affords a defence to any of the various crimes set out in ss 92(1) to (3). The provisions contained in s.92 have been devised to constitute a rigorous statutory code, involving offences initially of strict liability, for the plain policy reason that there is considerable public importance in preventing the trade in counterfeit goods.

Accordingly, the appeal against the conviction was dismissed.