NDLI: “R v. C & Ors” : Decision of the England and Wales Court of Appeals (Criminal Division) 1 November 2016

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“R v. C & Ors” : Decision of the England and Wales Court of Appeals (Criminal Division) 1 November 2016 – Case [2016] EWCA Crim 1617

Content Provider	Springer Nature Link
Copyright Year	2017
Abstract	1. The structure and wording of Sec. 92 is different from that of Sec. 10. It cannot possibly be said that potential liability for civil infringement is the same as potential liability to criminal prosecution and conviction. Section 10 contains no mental element, whereas Sec. 92 stipulates that the relevant act must be done “with a view to” gain or causing loss. Another clear difference is the provision of a special defence conferred by Sec. 92(5) which has no counterpart in Sec. 10. Also the phrase “likely to be mistaken for”, as contained in Sec. 92, is narrower than the phrase “a likelihood of confusion on the part of the public”, as contained in Sec. 10. 2. There is no coherent basis, even accepting that Sec. 10 is dealing with civil liability and Sec. 92 is dealing with criminal liability, for giving a different meaning or approach to the like phrase as used in Sec. 92. The statute is to be read as a whole; and the provisions in Sec. 92 are part of the overall statutory scheme. 3. Section 92 has a broad application, potentially extending not only to “counterfeit” goods, as such, but also to grey goods. 4. Trade mark violation gravely undermines the value of a brand and affects legitimate trade. The very fact of a cheap sale of an unauthorized branded item can both dupe a customer and diminish the market and overall value of the trade mark, in terms of perception of quality and exclusivity. In some cases moreover very real issues of public health and safety can arise where the goods are fake or, even if originally manufacture with the trade mark proprietor’s authorization, are then rejected as sub-standard but nevertheless sold on without authorization. 5. No difference as to the commitment of a criminal offence can be made when branded goods are sold without authorization by the factory when an order with an authorized factory is cancelled shortly before manufacture commences or shortly after the manufacturing process is concluded.
Starting Page	610
Ending Page	611
Page Count	2
File Format	PDF
ISSN	00189855
Journal	IIC - International Review of Intellectual Property and Competition Law
Volume Number	48
Issue Number	5
e-ISSN	21950237
Language	English
Publisher	Springer Berlin Heidelberg
Publisher Date	2017-07-05
Publisher Place	Berlin, Heidelberg
Access Restriction	One Nation One Subscription (ONOS)
Subject Keyword	Criminal offence Trade mark violation International IT and Media Law, Intellectual Property Law Civil offense Counterfeit goods Grey goods Criminal prosecution
Content Type	Text
Resource Type	Article
Subject	Political Science and International Relations Law

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1	Ministry of Education (GoI), Department of Higher Education	Sanctioning Authority	https://www.education.gov.in/ict-initiatives
2	Indian Institute of Technology Kharagpur	Host Institute of the Project: The host institute of the project is responsible for providing infrastructure support and hosting the project	https://www.iitkgp.ac.in
3	National Digital Library of India Office, Indian Institute of Technology Kharagpur	The administrative and infrastructural headquarters of the project	Dr. B. Sutradhar bsutra@ndl.gov.in
4	Project PI / Joint PI	Principal Investigator and Joint Principal Investigators of the project	Dr. B. Sutradhar bsutra@ndl.gov.in Prof. Saswat Chakrabarti will be added soon
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