R v Boulter [2008] EWCA Crim 2375 – Ss 10 and 92 TMA.
1) no criminal offence under s 92 unless civil infringement under s 10.
2) infringement of trade mark does not require likelihood of public confusion where identical trade mark used for identical goods.
3) poor quality of goods bearing trade mark did not prevent trade mark use.
- likely to be trade mark use unless trade mark used only for descriptive purpose.
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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.