The Sentencing Council has published new guidelines for sentencing intellectual property offences, which are due to come into force on 1 October 2021. While the unauthorised use of trade marks is often a civil law issue, in certain circumstances it is also a criminal offence contrary to Section 92 of the Trade Marks Act 1994. The new sentencing guidelines relate to criminal trade mark offences, in particular the possession and distribution of, or the intent to distribute, counterfeit goods.
The changes come following consultation by the Sentencing Council and replace the current guidelines issued in 2008, which deal with the sentencing of individuals in the magistrates’ courts. The guidelines have been updated for use in all courts across England and Wales, with new separate guidance for organisations and individual offenders (aged 18 and older). Due to the relatively low number, and frequently the complexity, of trade mark related offences that are heard in the criminal courts each year, sentencing of the offence is relatively rare. The new, more comprehensive guidance is seen to promote a more consistent approach to sentencing. The changes also bring the guidelines up to date with current sentencing models.
The new guidelines set out different offence categories and assess the culpability of the offender and the harm caused to determine the appropriate punishment. Particular emphasis is placed on the most serious cases and cases where there has been a risk of serious harm (for example, if the counterfeit goods are unsafe and there is a risk of death or serious physical harm). In these cases, there may be increased custodial sentences for individuals and increased fines for organisations, although it is not anticipated that sentencing practices will change materially.
Howes Percival are able to assist with a range of trade mark matters including civil disputes. If you have any questions or concerns about your own intellectual property, please contact a member of the team here to see how we can help.
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