Case background
TSJM decision

In a judgment of 29 October 2020, the Civil and Criminal Section of the Superior Court of Justice of Madrid (TSJM) largely dismissed the brief of appeal filed by the defendant against the convictional judgment issued on 24 April 2020, by which the Provincial Court of Madrid had sentenced him to a two-year prison sentence, a fine and payment of the damage compensation and legal costs of private prosecution.

Case background

According to the proven facts contained in the first-instance judgment, in March 2016 the EU Trademark Court Number 1 of Alicante sentenced the to-be defendant for the commercialisation in an open-to-the-public establishment of products that infringed Community trademarks and designs and ordered the cessation of said commercialisation. Once the breach of said judgment was verified, Adidas, the owner of the infringed marks and designs, filed the corresponding complaint before the police authorities. In July 2016 the police authorities carried out a raid at the defendant's premises, seizing more than 2,000 fake garments, which led to the issuance of the first-instance criminal judgment.

In his brief of appeal filed against the first-instance judgment, the defendant alleged an error in the evaluation of the evidence and a violation of the right to the presumption of innocence. He also alleged an incorrect interpretation of the crime against industrial property, invoking the consumer error theory, which claims that for this crime to be committed, consumers must be certain that they are acquiring genuine products.

Both the public prosecutor and Adidas, acting as a private prosecutor, opposed the appeal.

TSJM decision

As regards the allegation of error in the evaluation of the evidence, the defendant alleged a lack of concurrence of several elements in the criminal definition of the offence against industrial property. In this sense, the TSJM, quoting its own precedents, recalled that, considering the principle of immediacy, during an appeal, the assessment of the evidence as a whole must be respected, as well as the first-instance court's assessment thereof. Quoting precedents from the Supreme Court, the TSJM alleged that an appeal court does not function to reassess the evidence but rather to review the assessment made by the first-instance court. An appeal court can rectify the proven facts and replace them with its own where an error is detected, but it must always respect the aspects which are conditioned to the immediacy of examining the evidence and must always justify any change of criteria.

As regards the first-instance judgment, the TSJM stated that it "offers a thorough explanation of the examined evidence and, ultimately, of the reasons that support the proven facts" and its corresponding conviction. The first-instance court had taken into account the statements of the police officers – who indicated that although part of the seized garments had been in storage, others had been on display and ready for sale – as well as the detailed and expressive expert report, which the expert had ratified during the trial hearing.

With regard to the existence of mens rea (ie, criminal intent), the TSJM considered that the existence of a prior conviction in the civil jurisdiction for the infringement of Adidas's industrial property rights constituted a decisive and highly relevant element when assessing whether the defendant had known of the wrongfulness of his conduct.

As regards the violation of the presumption of innocence, the TSJM again quoted precedents from the Supreme Court and declared that the presumption of innocence had not been violated, as the first-instance judgment:

  • was based on enough evidence;
  • had been obtained with respect to the Constitution;
  • had been legally carried out during the proceedings; and
  • was rationally valued.

Finally, and with respect to the consumer error theory alleged by the defendant, the TSJM embraced the argument sustained in the first instance-judgment, considering that for the purposes of assessing the extent of criminal conduct, a risk of confusion for the consumer is irrelevant. Rather, the most technically robust criteria to consider is that the legal interest protected in offences against industrial property is the exclusive right to exploit the registered brand, "indissociably united to the prestige or commercial reputation of its owner", with the protection of consumers' rights not included in said crime.

This judgment is not final and the defendant has announced that it will appeal it through the cassation appeal process before the Supreme Court.

For further information on this topic please contact David Daura at Grau & Angulo by telephone (+34 93 2023456) or email ([email protected]). The Grau & Angulo website can be accessed at