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On appeal from [2016] EWCA Crim 1617

The case considered whether a criminal offence can be committed under the Trade Marks Act 1994, s 92(1)(b) or (c) (selling, offering for sale or distribution/possession with a view) where the proprietor of the registered trade mark has given its consent to the application of the sign which is its registered trade mark or has itself applied its own registered trade mark to the goods, but has not given its consent to the sale, distribution or possession of them.

The Supreme Court unanimously dismissed the appeals, rejecting the appellants’ construction of s 92(1). The Court approached the legislation by looking at its plain reading, and therefore held that the requirement of the proprietor’s lack of consent applied to every subsection of s 92(1) to set out the offences, and that the subsections were not cumulative. As such, the so-called grey market goods are caught by the provision. The Court held that there is therefore no ambiguity in the language of the section to justify investigating the Parliamentary debate at the passing of the 1994 Act and that it is impossible to contend that Parliament confined itself to criminalising fake goods and abjured the criminalising of grey market goods. Therefore, there is no reason to strain the construction of s 92(1) to exclude the sale of grey market goods.

For judgment, please download: [2017] UKSC 58
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (19 Jun 2017 morning session)