"GOOD FAITH" DEFENCE NOT OPEN TO TRADER WHO CLAIMED NOT TO KNOW WHAT A TRADE MARK WAS

In R v Rachel McCrudden, decided yesterday but not yet available on BAILII, the Criminal Division of the Court of Appeal added further judicial gloss to the statutory defence to trade mark infringement in the UK under the Trade Marks Act 1994 s.92(1). McCrudden, a market trader, had been offering for sale a large quantity of clothing bearing designer labels. Following a test purchase by trading standards the stock was seized and most of it discovered to be counterfeit. She said she knew the goods were designer labels but did not know what a registered trade mark was and had no reason to believe the goods were not genuine. At the close of her defence submissions the trial judge ruled that, on the evidence before the court, McCrudden could not rely on the statutory defence under s.92(5) so she changed her plea to guilty. She then contended on appeal that the judge was wrong to rule the statutory defence was not available to her.

The Court of Appeal upheld the conviction, holding that the judge's ruling was correct. Section 92(5) of the Act provided a positive and specific defence to a person who knew of the trade mark but did not regard its use as infringing: it did not however provide a general defence that the accused acted in good faith. The Court added that Section 92 had been devised to constitute a rigorous statutory code, of almost strict liability, for the plain policy reason that there was very considerable public importance in preventing the selling of counterfeit goods.

The IPKat marvels that anyone who sells designer goods in a market can keep a straight face long enough to tell the judge she doesn't know what a trade mark is.

Great excuses here and here
No excuses here