R v Veys

Date

23 October 1992

Legislation

Trade Descriptions Act 1968 ss2, 34

Keywords

trade marks; criminal offences; relationship between trade marks and trade descriptions; certified questions

Counsel

Roger Booth for Veys, M. Thomas Q.C. for the Crown

Solicitors

M.B. Cuttle & Co; Crown Prosecution Service

Judge

Staughton LJ, Waterhouse and McCullough JJ

Court

Court of Appeal (Criminal Division)

Reported

[1993] FSR 366

Summary

On 13 October 1992 the Court of Appeal allowed the appeal of Mr. Veys against his conviction on two charges of offering to supply goods to which a false trade description had been applied. One count related to T-shirts and the other to badges. Its reasons were that there was no evidence fit to go to the jury that, taken as a whole, they contained any such indication as is mentioned in s2 of the Trade Descriptions Act 1968. As to the badges, it held that since the jury must have misunderstood their task in relation to the T-shirts, there must be at least a lurking doubt as to the conviction on that count. The Court of Appeal stated, in the course of giving judgment that "Infringement of a trade mark gives rise to a civil remedy, but it does not necessarily constitute an offence against the Trade Descriptions Act"

The Court of Appeal noted that it had no doubt that the use of a trade mark is or may be relevant to the issue of whether there was a false trade description and that it understood the case had caused some concern amongst those whose business it is to enforce trading standards. Consequently there was now an application to certify points of law of general public importance and also an application for leave to appeal to the House of Lords.

The Court stated that 'what we meant to say was that the T-shirts, taken as a whole, did not contain overall an indication as to who had authorised them to be produced or whether they conformed with any authorised type or by whom they were produced. We did not intend to say that the use of a trade mark could never be an indication as to any of those matters. Indeed, very shortly before that we had disclaimed entering upon that question, when we referred to the narrower point that we had to consider. We must apologise if others have been misled by what we said. But, in the light of what we say now, we trust that it will be understood correctly.'

The two questions which the Court of Appeal were asked to certify were as follows: "1. Whether, as a matter of law, by the application of a trade mark to goods, a trade description within the meaning of the Trade Descriptions Act 1968 is thereby applied.

Decision

" The Court concluded that the answer to that question was 'no'. It does not follow, as a matter of law, that applying a trade mark to goods necessarily and in all cases amounts to the application of a trade description.

The second question was: "2. If the answer to Question 1 is 'it is a matter of fact' whether that fact is to be determined by the jury or the judge on a trial on indictment." The Court of Appeal held that it is a matter of fact for the jury, provided always that there is sufficient evidence to constitute a case to go to the jury.

Accordingly the questions were not certified as being of general public importance and leave to appeal to the House of Lords was refused.