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Trading standards officers are responsible for enforcing laws designed to protect consumers from being harmed by dangerous products and being victims of scam, for example people passing off fake products as genuine. They have a wide range of powers but here we will talk about their powers to bring criminal prosecutions.
Unauthorised Use Of A Trademark
It is an offence to put a sign on a product or its packaging that is identical to a registered trademark or that is so similar it is likely to be mistaken for the trademark. There are also offences covering people who sell fake goods and who have them in their possession in the course of a business.
You will also commit an offence by attempting to pass yourself or your business off as another business by producing labelling, packaging, business paper or by advertising goods using a registered trademark or a sign that is likely to be mistaken for a registered trademark.
Finally, an offence is committed by making or possessing, in the course of a business, an article that is designed or adapted for making copies of a sign that is identical or likely to be mistaken for a registered trademark.
When assessing your liability for these sort of offences, we will always want to consider whether a) the trademark is properly registered; and b) whether the trademark has a reputation in the UK meaning that using it would take unfair advantage of that reputation or would be detrimental to the reputation of the trademark. So, for example, Company A is an established business in the USA with a trademarked logo and Company B begins using Company A’s logo in the UK for their products. Company B will not commit an offence if they can show that either Company A’s logo is not trademarked in the UK or that if it is trademarked here that the logo has no reputation in the UK and thus no unfair advantage or damage to Company A’s trademark has been caused.
You will also have a defence if you can show that you believed your use of the trademark was not an infringement. You must have reasonable grounds for your belief. Let’s imagine you are very angry with an airline and set up a website to protest them using their trademark. You may be able to convince a court that you believed your use of the trademark was not infringing the trademark.
The maximum sentence available for these offences is ten years imprisonment and an unlimited fine.
For obvious reasons, offences involving food are treated very seriously. There are two broad types of offence involving food: selling substandard food and giving false descriptions of food.
An offence is committed by a person who sells food for human consumption, to the prejudice of the purchaser, that is not of the nature, substance or quality demanded by the purchaser.
It is a defence to show that you pointed out any defects with the product to the buyer before the purchase took place. You will also have a defence if you show that you exercised all due diligence to avoid the commission of an offence. To do so, you must show that a) you did not prepare the food nor import it into the UK; b) the defect was the fault of another person and c) you carried out all reasonable checks. Where you are alleging that the defect was caused by another person, you must identify that person to the prosecutor. Failure to do so within the time limits set out by law will prevent you relying on the defence.
In the case of Carrick v Taunton Meat Traders, the defendant was able to secure an acquittal by showing that the meat he was supplying was inspected by a meat inspector prior to sale. The court held that a trader was entitled to rely on the judgement of the inspector and could not be held liable for the inspector’s errors.
Consumers are entitled to get the thing they pay for from businesses, which is why a person who sells food for human consumption that does not meet the description he gives of it will commit a criminal offence. The description may be on a sign, label or wrapper. It may also be in a published advertisement. This means that placing a wrapper on a piece of fish describing it as cod when it is in fact pollock is an offence. A restaurant menu describing a dish that contains truffles when in fact it contains only normal mushroom would also be an offence. Substituting standard beef in place of Wagyu beef is also an offence.
It should be noted that it is not a defence to show that there was a second (or even third) label that accurately described the product.
It is a defence to show that you used due diligence to avoid committing the offence. For example, a restaurant that buys beef believing it to be Wagyu beef and sells it on as such may have a defence.
A business may also have a defence if they can show that they publish or arrange for the publication of advertisements and that they received the advertisement in the normal course of business and had no reason to suspect that its publication would amount to an offence. This obviously covers newspapers and printers of leaflets. But, it might also cover shops who take advertising materials from manufacturers who have produced processed food that does not contain the ingredients listed in the advertising.
Upon conviction for a food offence, you will be liable for a term of imprisonment of up to two years plus an unlimited fine.
If you hold a licence or are registered under the Slaughterhouses Act 1974 then the court may make an ancillary order cancelling your licence or registration.
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