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Trade marks Appeal successful

Written by Michael Coyle on 13 February 2009

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A person commits an criminal offence in trade marks where that person who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the trademark proprietor has in his possession, custody or control in the course of a business any such trademarked goods with a view to the doing of anything, by himself or another.

If you are in control of the items you are committing an offence. But would it apply to your spouse? Would they also be guilty?

In a recent Court of Appeal case the wife of Mohammed Sajid, was convicted of nine counts under section 92(1). His wife (the appellant) appealed against her conviction.

The prosecution claimed that the husband was a trader in counterfeit goods which he willingly sold on his market stall. Their case against the appellant was that she was aware of the counterfeit goods because they were stored in the family home and on this basis it could be said that she also was in possession of them.

The defence case for the appellant was that she was not in possession, custody or control of the items seized. She did not use the van, was not employed and did not have any active involvement in the business of her husband.

The Court of Appeal allowed the Appeal. The appellant was not in possession of the goods for the purposes of section 92(1)(c) of the Act. Section 92(1)(c) required more than the ability to control the goods. The Appeal thought control was to be used in the sense of the ability to demand that property be removed or the ability to remove it oneself, was no more than knowledge or acquiescence. The property was owned by her husband and she could not be said to be in joint possession of the items. The key is to establish that the person was involved in the business as a participant in the business of dealing in the goods- actual exercise control is required.

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