It is always good to remember that counterfeiting is not just a civil matter, but a criminal matter. We have had a busy last couple of years dealing with innumerable matters with Trading Standards that have led to a substantial number of confiscations of counterfeits of our clients' goods and criminal convictions against traders.
We are dealing daily with Trading Standards officers to assist them in their prosecutions against counterfeiters. The counterfeiting though is sometimes only half the story. It is quite often a front for various other criminal activities. Trading Standards work closely with the Police to take action against criminals ranging from organised gangs to naïve local traders who are either 'innocently' or recklessly infringing the trademarks of brand holders and do not appreciate the consequences of doing that.
It is both the serious organised criminal and the low level trader (and all those in between) that damage the brand of the brand holder and cause financial loss. Knowing that Trading Standards do take action and that action has a serious impact on the counterfeiters can be comforting.
Examples of the sort of penalties we have seen include (from the more serious end of the scale) a trader receiving a prison sentence of 27 months. Another received a 12 month prison sentence suspended for 18 months. The court also forfeited the goods. Another example is a trader who had over 4,000 items seized bearing the trademarks of over 60 different brand holders. The individual was sentenced to 9 months imprisonment for trademark offences and directed to pay £15,000 towards the legal costs of the prosecution and ordered to serve a further three months imprisonment to be served concurrently for breaches of a previous suspended sentence order.
The judge when sentencing made the following comments:
"Trademark offences undermine reputable companies and the court has a duty to protect trademark holders and their brands. These matters are time consuming and difficult to bring to court. The conduct of the trader was intentional and designed to cause loss and is aggravated by 16 similar offences committed in 2008 and during the period of a suspended sentence order"
At the other end of the scale are the small scale traders who often receive formal cautions, small fines and have their goods seized and/or might have a licence to trade revoked. They may even receive a lesson from Trading Standards authorities on trademark law and what they can and cannot do and how to trade properly in the future. This is valuable as it deters the small scale criminal and educates the more innocent but inexperienced trader.
The great benefit for our clients when wishing to protect their brand is that co-operating with Trading Standards on criminal prosecutions is not expensive and is effective. Trading Standards are the ones that run the prosecutions and the brand holders just assist mostly in the background. Therefore Trading Standards incur the bulk of the time and costs and the sanction of the court is ultimately a criminal sentence which can be a greater deterrent than a civil remedy.