R v Keane [2001] FSR 63 - Ss 92(1) & 92(5) TMA.
- use of trade marks.
1) P does not have to prove knowledge of infringement under s 92(1) - (otherwise the s 92(5) defence would be redundant).
2) European Convention on Human Rights does not prevent shifting of evidential onus.
3) assertions at interview do not prove statutory defence.
4) reasonable to regard tracksuits as leisure wear even if also sports wear.
5) offence to use registered format even if holder did not have exclusive use of words.
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Related case digests
- R v Johnstone [2003] 1 WLR 1736 - H of L - S 92 TMA - article 6(2) ECHR.
1) essence of a trade mark is that it is a badge of origin. 2) ingredients of the offence are contained in s 92. - intention to infringe a registered trade mark is not an ingredient of the offence. - use of trade mark as an indication of trade origin is an ingredient of s 92 offences. - there must be a civil infringement before there can be an offence under s 92. - the test is how the use of the sign would be perceived by the “average consumer” of the type of goods in question. 3) s 92(5) TMA defence includes that D believed on reasonable grounds that either: a) no relevant trade mark was registered or b) his use of the sign did not infringe a registered trade mark of which he was aware. 4) the burden of proof in a s 92(5) TMA defence was on D on the balance of probabilities. 5) reverse burden of proof in s 92(5) TMA was compatible with article 6(2) ECHR. - P not required to prove intent to infringe a registered trade mark. - s 92(5) TMA requires D to have acted honestly and reasonably believed goods were genuine. Surviving points from Court of Appeal: 6) s 103 – “in the course of trade” – wide definition – can include use on a single article. 7) validity of the registration of a trade mark cannot be determined in a criminal trial. - S v LB of Havering [2002] EWCA Crim 2558 - Ss 92(1) and (5) TMA – article 6(2) ECHR.
1) s 92(5) imposes a legal burden. – “to show” is synonymous with “to prove”. 2) s 92(5) does not relate to an essential ingredient of the offence under s 92(1). 3) elements of s 92(1) – only mental element, “intent” to cause loss, is hardly mens rea. 4) neither dishonesty, bad faith nor intent are an element of a s 92 offence. - no reference to “knowingly” in s 92 (1) (2) or (3). - s 92(5) defence is not confined to belief: it requires belief “on reasonable grounds”. 5) reverse burden of proof in s 92(5) is compatible with article 6(2) ECHR.