Saturday, 31 January 2009

One small victory for trade mark owners ...

South Shields occupies an important role in my life: I stood there in the 1983 General Election (winning second prize: not much of a lasting memento) and secured my place in history, yet unrecognised, by being surely the only Conservative parliamentary candidate ever to hire a hall (in a working men's club, I think) and inviting 200 redundant shipyard workers to come to a meeting.  The Readheads yard did eventually reopen, but the little I contributed to the project didn't lead to a continuing relationship.

That has nothing to do with this story, though, except that a shopowner in South Shields has just been fined for selling counterfeit cigarettes.  The Shields Gazette, in which we managed to get at least a story a day during the election campaign, reports that the defendant was fined £225 under the Trade Marks Act, and £50 for each of four offences under the Consumer Protection Act relating to the absence of health warnings from the packs.  Her address was given as Cleadon Village, which back in 1983 party workers described as "stockbroker belt".  It may be that the penalties did not hurt her much.  It looks from Google Maps as if the shop was a stone's throw from my campaign headquarters - "The Rooms", as they were known.  Rather less salubrious.

Back when I was standing for parliament, of course, the Copyright, Designs and Patents Act was not even on the drawing board, and the Trade Marks Act 1994 was a long way off (so too was the Directive on which it is based).  There were criminal offences in the copyright world, but not yet in the trade marks world: working for the Society of Motor Manufacturers and Traders, I was awfully familar with the problem of counterfeit car parts but I don't recall us trying to get legislation to create criminal offences.  Why should public bodies concern themselves with protecting the interests of intellectual property owners?

My conviction that trading standards officers were not the right people to deal with trade mark problems was confirmed a few years after the 1994 Act came into operation, when a client was prosecuted at the behest of a trade mark owner.  He had certainly arguable defences under section 11 of the Trade Marks Act, but they cut no ice whatsoever with the authorities.  The criminal law is a blunt instrument for dealing with an extremely nuanced area like trade mark infringement: but in the present case, there seem to be no nuances involved, and justice has surely been done.  I can't help feeling, though, that consumer protection is the more appropriate rubric for the prosecution, and the trade mark owner should have been left to take action for infringement.  The award of damages, and costs, would probably have meant more to the defendant than the paltry fine, too.

1 comment:

geeklawyer said...

Hear bloody hear. I am currently representing one punter who has been targeted by Trading Standards - all fired up with their duties and obligations to protect trademarks - but who haven't got a clue about trademark law beyond "well, it's the same lookin' name innit mate?".

TS are a bunch of thicko jobsworth neanderthal local government clock-punchers. As a result honest business men (yes, as well as dishonest ones) are put to aggravation by malicious complaints; the public picks up the tab for a clueless prosecution.

Bloody infuriating.


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