The Sentencing Council has produced new guidelines for the offence of selling or possessing counterfeit goods intended for sale. The new guidelines will replace the existing one, which applies only to individuals, and will be used in all courts from 1 October 2021.
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New sentencing guidelines for trade mark offences
Until now, sentencing guidelines for the sale or possession of counterfeit goods intended for sale have only applied to individuals. From1 October 2021, two new guidelines will come into force. The first deals with the sentencing of individuals, while the second deals with the sentencing of companies.
Unauthorised use of a trade mark carries a maximum sentence of 10 years’ imprisonment and/or an unlimited fine. Other available penalties include a confiscation order, compensation order and forfeiture of goods.
When deciding an appropriate sentence for individuals, the sentencer must consider the level of culpability and the level of harm.
The level of culpability is determined by various factors such as the offender’s role, the amount of planning involved, and the level of sophistication.
The level of harm requires a slightly different approach. The guidelines say the sentence should put a monetary figure on the offending. This is done by establishing the equivalent retail value of the legitimate versions of the goods. An estimate can be used, if needed.
The sentencer should also consider whether significant additional harm has been suffered – either by the trade mark owner or by those who purchased the counterfeit goods. For example, purchasers of counterfeit goods may be put at risk of physical injury.
Culpability factors for organisations are similar to those in the guideline for individuals. The harm factors are identical.
The main difference is that companies cannot be imprisoned or given a community order. They can only be fined or discharged. However, the level of fine is unlimited. Companies may also be subject to a confiscation order and may have to pay compensation to the victims of their crime.
The guidelines state that a company may have to pay compensation where the offence has caused personal injury, loss or damage. This is dependent on the offender’s financial means, although the payment of compensation should take priority over other financial penalties.
Have you been accused of trade mark offences?
Prosecutions for trade mark offences are relatively rare. In 2019, only around 370 adults were convicted of such offences, along with 40 organisations. The majority of individuals received a community order, although 4% were sentenced to immediate custody, with 17% given a suspected sentence.
Therefore, custodial sentences for trade mark offences do occur. For companies, the penalties can be financially ruinous, as can the reputational damage. That is why if you or your company is accused of selling or possessing counterfeit goods, you need to get expert legal representation.
Criminal defence solicitors – England and Wales
If you have been accused of trade mark offence, or your company has, please contact us at Ashmans Solicitors. We are highly experienced solicitors and can represent you throughout proceedings.
Call us on 0333 009 6275. We are available 24 hours a day, 7 days a week.