Friday, 3 September 2010

Convictions for trade mark offences

Two recent stories on convictions under the criminal provisions of the Trade Marks Act. I must still confess to being unconvinced about the merits of enforcing private property rights through criminal offences, especially where the IP rights owners are multinational behemoths who can afford to enforce their own rights. The cases come from Edinburgh and Leicester respectively, involving in the first case Microsoft software and some print cartridges and in the second DVDs, and do not apparently involve copyright. In the Scottish case, the trader has been rosecuted and assets have been seized (reading between the lines a bit) under the Proceeds of Crime Act, and now Microsoft is quite rightly seeking damages. In Leicester, the re-offending shopkeeper has been sent to prison pour encourager les autres though who can tell whether les autres will take note.

Coincidentally, the IPKat has a report of the experiences of an unfortunate trade mark owner, Christine Watson, who found that the criminal provisions of the Trade Marks Act didn't assist her much. Another illustration of how the trade mark system in this country, and in the European Community, is badly broken. Enforcement by trading standards departments is always going to be uneven, as differnt authorities will have differnt priorities, different budgets, and different levels of experience. It does look from the scant evidence of these three items as if trading standards departments might be more receptive to complaints from Microsoft or Hollywood studios than from the small businesses who need their help, though it would be nwise to draw many conclusions from the press stories.

Because trade marks have - still! - an important consumer protection dimension, trading standards departments need to be involved in their enforcement, even where the rights owner could afford to take the matter to court. That dimension is clear enough in counterfeiting cases, less clear in "ordinary" infringement situations. But as the IPKat also reported a few days ago, an EU report has (reportedly: the Kat's source is the Telegraph) an EU-funded study (for which, as the Kat points out, read tax-payer funded study) has concluded that fakes are OK. Well, that's a simplisitc generalisation: one might read it as saying that we should be worried about counterfeit parts for cars and aircraft, and drugs, before we worry about counterfeit handbags, and that sounds perfectly reasonable. I don't agree that counterfeits produce a beneficial effect by speeding up the fashion cycle, and I certainly don't see how they raise brand awareness - the brand awareness is surely a necessary pre-condition for a flourishing counterfeit industry.

If however they destroy the artificial cachet of expensive brands, and cause people to focus instead on real virtues like quality and - dare I say - durability, which at present are subsumed into the brand and lost to sight behind the more superficial aspects, then that sounds like a good thing.

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