Updated sentencing guidelines aim to crackdown on counterfeiters

About the author

Daniel Bailey is an associate at Appleyard Lees IP LLP. Daniel is a dual-qualified trade mark attorney and solicitor and is experienced in clearing, registering and enforcing trade marks. His experience working in-house at a major retailer means he understands the need for commercially led advice.

 

Crackdown on counterfeiters – updated sentencing guidelines

New sentencing guidelines were published on Thursday 5 August 2021 for the sentencing of individuals and organisations for the unauthorised use of trade marks. The guidelines are designed to enable courts to impose consistent and proportionate sentences for offenders (individuals or organisations) who sell or possess counterfeit goods. In particular, the guidelines address offenders that “run a sophisticated operation or risk significant harm”.

The new guidelines replace those from 2008, which are used in the magistrates’ courts and only apply to individuals.

For the most serious of offences, individuals may face a custodial sentence of up to seven years, and organisations could face fines of up to £450,000. The new guidelines assess harm based on the monetary value of the counterfeit goods by reference to the retail value of the genuine products and whether any significant additional harm is suffered by the trade mark owner or purchaser of the counterfeit goods.

Whilst the Sentencing Council does not anticipate the new guidelines changing the average sentencing in most cases, there may be some increase in the length of custodial sentences for individuals guilty of the most serious types of cases.

In a press release, Sentencing Council member, District Judge Mike Fanning, said:

“Selling counterfeit goods may appear to be a victimless crime, but it harms not only the owner of the trade mark but also legitimate traders and – in some cases -can put the people who buy them at risk of serious harm.

“The new guidelines, which will for the first time apply to organisations, will  enable courts to impose sentences that are consistent and proportionate  in these cases which can be complicated and, by reason of the relative infrequency with which they come before the courts, unfamiliar  to many sentencers.”

These new guidelines come into force on 1 October 2021.

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