R v Thompson [2006] EWCA Crim 3058 - S 92 TMA.
- average consumer.
- direction to jury must include:
- that s 92 only applies when offending sign is used as an indication of trade origin
- that the test is how the use of the sign would be perceived by the average consumer of the type of goods in question.
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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.