David Daura July 30 2018 Criminal sentence for importers of counterfeit t-shirts Grau & Angulo | Intellectual Property - Spain David Daura Intellectual Property FactsAppealDecisionOn 6 April 2018 the Zaragoza Court of Appeal issued a ruling confirming the Zaragoza Trial Court Number 1 judgment which had sentenced two defendants for importing several thousand counterfeit t-shirts from China.FactsIn 2013 the Customs and Special Taxes Administration at Madrid Airport suspended a shipment from China containing 2,861 counterfeit t-shirts by applying Council Regulation 1383/2003.AppealIn their appeal against the trial court's condemnatory judgment, the defence raised the following arguments:the trial court had erred in assessing the evidence;there had been a break in the custody chain of the seized goods;one of the defendants had not participated in the importation; andthere had been no consumer error.DecisionThe Zaragoza Court of Appeal dismissed these arguments and confirmed the trial court's stance, which the private prosecutor had previously alleged.Trial court's error in assessing evidenceRegarding the trial court's error in assessing the evidence, the Zaragoza Court of Appeal – drawing on extensive and consolidated Supreme Court case law regarding the assessment of evidence at second instance – reasoned that the second instance is not the procedural moment to request a second assessment of personal evidence (eg, a defendant's cross-examination or witness and expert statements). Rather, this assessment corresponds to the trial court, which – based on the principle of immediacy – will have already witnessed the evidence being presented during the trial hearing. The Zaragoza Court of Appeal ratified the conclusions of the trial court, which had witnessed enough incriminating evidence to sentence the defendants.Break in custody chainRegarding the break in the custody chain, the Zaragoza Court of Appeal – also drawing on Supreme Court case law on this topic – stated that the mere approach of generic doubt is insufficient. Instead, those that question a break in a custody chain must specify when, why and to what extent the chain has been broken. The Zaragoza Court of Appeal dismissed this allegation from the defence, alleging that no specific data had been provided as to the breaking of the supply chain and that there was only a mere possibility that it had occurred.Defendant's non-participationRegarding the non-participation of one of the defendants, it was alleged that he was a mere employee who had not been involved in the importation of the goods. In this respect, the Zaragoza Court of Appeal confirmed the trial court's decision that said defendant was not a mere employee. Rather he was the company's manager and de facto administrator and had been responsible for making contact with the customs agents for all matters relating to the company's import activity.Consumer errorFinally, and with reference to the consumer error theory alleged by the defence, the Zaragoza Court of Appeal – once more confirming the trial court's reasoning and following the majority case law ruling on this topic – stated that the legal right protected in IP offences is not the consumer's interest, but rather the right of a trademark owner to exclusively use and exploit its mark. The court stressed the transcendental commercial and economic value that the trademarks in question had in the market and ruled that the product's quality, price or place of sale was thus irrelevant.The Zaragoza Court of Appeal confirmed the offenders' prison sentences, disfranchisement and fines, as handed down by the trial court. It also:sentenced the offenders to pay damages to the trademark holder and the procedural costs of the private prosecutor; andconfirmed the destruction of the seized t-shirts.This judgment is final.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 www.ga-ip.com.