Lewin v Fuell
Date
18 January 1990
Legislation
Trade Descriptions Act 1968, ss. 1, 6, 24
Keywords
replica goods; oral disclaimer
Counsel
J. Posansky, J. Fox
Reported:
(1991) 10 Tr LR 126, Times 20 January 1990
Court:
Divisional Court
Solicitors:
unknown
Judge:
Woolf LJ, Pill J
Summary:
Appeal by way of case stated from the magistrates' dismissal of informations laid under section 1(1) of the Trade Descriptions Act 1968. It was alleged that the Defendant had in the course of trade offered to supply wristwatches and attaché cases under the marks Cartier and Rolex. The Defendant knew the articles to be replicas. However, the Magistrates found (a) that one customer knew that they were not genuine, and (b) that when a trading standards officer making a trial purchase had inquired as to the cost of the goods, that the Defendant had told him that they were not genuine.
The questions for the Court on these facts were (a) whether no offence was committed by reason of the oral disclaimer; and (b) whether there was a defence under section 24(1)(b) of the Act, namely that the Defendant had taken 'all reasonable precautions and exercised all due diligence' to avoid the commission of an offence.
As to (a), an oral disclaimer given to anyone who inquired about the goods did not nullify the false trade description applied at the time they were exposed for supply.
As to (b), paragraphs (a) and (b) of section 24(1) are cumulative, not alternative. To come within the defence, a defendant also had to show "that the commission of the offence was due to a mistake or the reliance on information supplied to him or to the act or default of another person, an accident or some other course beyond his control". This was not shown, and neither was it shown that the Defendant had taken sufficient precautions or exercised sufficient diligence at the time the goods were exposed for supply. Any disclaimer would have to be made at the time the goods were exposed.
Decision:
Appeal allowed, and remitted with a direction to convict.