Ancillary Orders Consultation

Closes 4 Dec 2024

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Forfeiture order - Trade mark offences

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

May be made by

A magistrates' court or the Crown Court

Relevant legislation

section 97 of the Trade Marks Act 1994

Availability

The prosecution may apply for forfeiture of goods or materials bearing a sign likely to be mistaken for a registered trade mark or articles designed for making copies of such a sign.

The court shall make an order for forfeiture only if it is satisfied that a relevant offence has been committed in relation to the goods, material or articles.

A court may infer that such an offence has been committed in relation to any goods, material or articles if it is satisfied that such an offence has been committed in relation to goods, material or articles which are representative of them (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

Relevant offences
  • an offence under section 92 of the Trade Marks Act 1994 (unauthorised use of trade mark, etc in relation to goods)
  • an offence under the Trade Descriptions Act 1968
  • an offence under the Business Protection from Misleading Marketing Regulations 2008
  • an offence under the Consumer Protection from Unfair Trading Regulations 2008, or
  • any offence involving dishonesty or deception

Destruction of forfeited goods

Where any goods, material or articles are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

On making an order under this section the court may, if it considers it appropriate to do so, direct that the goods, material or articles to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person

  1. causes the offending sign to be erased, removed or obliterated, and
  2. complies with any order to pay costs which has been made against them in the proceedings for the order for forfeiture.

Sentencing guidelines that will include a drop down of this guidance:

  • Individuals: Trade mark, unauthorised use of etc.
  • Organisations: Trade mark, unauthorised use of etc.

 

23. Do you have any comments on the content of the forfeiture order (trade mark offences) guidance, or on the list of sentencing guidelines which will include this guidance?