In the recent case of Public Prosecutor v Chua Keng Fock [2010] SGDC 134, the District Court acquitted the Accused of charges brought under the Trade Marks Act (Cap. 332) on the ground that he had taken all reasonable precautions against committing the offence, and had no reason to suspect the genuineness of the goods. The Accused was arrested and charged following a series of police raids at retail shops, a bazaar and a warehouse operated by UrbanWear Pte Ltd (“UrbanWear”), which dealt with fashion apparels. The goods seized included apparels bearing ‘Abercrombie’, ‘Quiksilver’, ‘Oakley’ and ‘Timberland’ trade marks, amongst many others.  

The charges were brought under Section 49(c) of the Trade Marks Act (Cap. 332) (“the Act”), which makes it an offence to possess goods with a falsely applied trade mark for the purpose of trade or manufacture. It is a defence for the Accused to show that, having taken all reasonable precautions against committing the offence, he had, at the time of commission of the offence, no reason to suspect the genuineness of the mark; and had, on demand by the prosecution, given all the information in his power with respect to the persons from whom he obtained the goods.  

The court found that, at the time of the raids, the Accused was a mere employee of UrbanWear who had neither financial interest in the business nor control thereof. Additionally, his job scope did not require him to procure goods, and he had no control over the choice of suppliers or the importation of goods. In the circumstances, the Accused had taken “all reasonable precautions” by obtaining assurances of both the owner and General Manager of UrbanWear that the goods were genuine and not counterfeit, and by conducting a cursory check of the goods to ascertain the same.  

The court also accepted that the Accused had no reason to suspect the genuineness of the goods, based on its finding that it is difficult to distinguish genuine goods from factory overruns or rejects. The Accused’s evidence that the suppliers were his old contacts and that he never had problems with the goods supplied by these suppliers may also have been taken into consideration.

This case would suggest an accused who had no control over the infringing articles may quite easily invoke Section 49(c) of the Act in his defence by claiming a mistaken assumption that the goods were factory overruns or rejects.