Essex Trading Standards v Wallati Singh  EWHC 520 (Admin) is a Divisional Court (England and Wales) decision from 3 March which the IPKat nearly missed completely. This was an appeal by the local authority trading standards enforcement agency against an acquittal on charges under s.92 of the Trade Marks Act 1994. Lord Justice Goldring summed up the basics of the charge:
"... the respondent, who was a man of good character, appeared before the Essex Justices in Basildon. He was charged as follows. The first allegation was that on 1 September 2007, at Pitsea Market, Basildon, in the County of Essex, he did, with a view to gain for himself or another, without the consent of the proprietor, have in his custody or control in the course of a business certain goods, namely 392 pairs of trainers bearing the Nike sign or logo, such sign or logo being likely to be mistaken for the registered trade mark of Nike International Limited of Oregon, USA, contrary to section 92(1)(c) of the Trade Marks Act 1994. The second allegation was in similar terms. It related to 15 pairs of trainers bearing the BAPE sign or logo".The Magistrates acquitted the accused. A man with a blameless past, he said he was looking after the market stall belonging to a Mr Hooper, whom he had known for some 20 years. He was unemployed and his wife was suffering from depression. He said he had asked if the goods were genuine and was told that they were, their cheap price being a consequence of their being 'clearance stock'. As a man whose expertise lay in the field of selling ladies' fashion shoes, he was not a sports shoe expert and he would not be able to determine for himself whether the goods in question were genuine.
The Divisional Court was not so merciful. As Lord Justice Goldring said:
"12. The respondent knew that the goods had to be genuine. As the authorities establish, he must be treated as having been aware of the existence of the registered trade mark. Section 92(5) places a legal persuasive burden on the respondent...
13. The issue is whether the respondent discharged the burden upon him under section 92(5). Did he show that he believed on objectively reasonable grounds that these were genuine goods? Or, to put it in the way that this court has to consider it, were the magistrates entitled to conclude, on the evidence they heard, that he did show, on reasonable grounds, that he believed they were genuine?
14. In my view, the evidence advanced by the respondent falls far short of that needed to displace the burden. The goods were taken in a van which was not Mr Hooper's. The respondent knew their price was low. The sole basis for his professed belief was the word of a drug addict, who was apparently suffering from an overdose and unwell nearby. The respondent neither saw nor sought independent evidence, such as documentation, relating to the goods' supply or their provenance. Indeed, he could hardly have done less. In my view, no Magistrates' Court could reasonably have concluded that his belief that the goods were not counterfeit was arrived at on reasonable grounds.
15. ... It is not enough to conclude that the defendant acted honestly. He has, too, to act reasonably, in other words on reasonable grounds. This, the respondent did not do, as on the evidence the magistrates were bound to conclude.
16. [The Magistrates] were entitled to have regard to the respondent's good character in deciding whether or not he was acting honestly. His character, however, was irrelevant in deciding whether the grounds upon which he relied were reasonable. As to the third question, I have already answered that: no reasonable bench could have decided as did this bench.
17. In the circumstances, for the reasons I have given, I would allow this appeal".The IPKat is closing his eyes and trying very hard to imagine market traders showing each other their documentation in a gentlemanly attempt to persuade each other of the provenance of their merchandise. Merpel says, this is really interesting. We all know that most people who file-share are infringers, so the British government takes the view that we should let the law accord with reality by making file-sharing either legal or at least less illegal. But here, where we all know that lots of cheap fakes are sold in markets, we don't expect the law to bow to reality and make the Walliti Singhs feel better about what they're doing. Is there a double standard, or at least some inconsistency, here?
Cat missing in Pitsea here