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.
undefined: unpaid
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. - Torbay Council v Satnam Singh (1999) 163 JP 744 - Ss 92(1) & (5) TMA.
- Teletubbies. 1) not necessary to prove knowledge of or intent to infringe a registered trade mark. 2) defence of reasonable belief that logo is not a registered trade mark.