Unauthorised use of a trademark sentencing guideline

Closes 30 Sep 2020

Opened 8 Jul 2020

Overview

What is this consultation about?

The Sentencing Council is proposing to issue two guidelines for the offence of unauthorised use of a trade mark contrary to section 92 of the Trade Marks Act 1994; one for sentencing individuals and one for sentencing organisations.

What is the Sentencing Council?

The Sentencing Council is the independent body responsible for developing sentencing guidelines which courts in England and Wales must follow when passing a sentence. The Council consults on its proposed guidelines before they come into force and makes changes to the guidelines as a result of consultations.

Why are we doing this?

Unauthorised use of a trade mark is an either way offence (one that can be dealt with in magistrates’ courts or in the Crown Court). The maximum sentence allowed by law is 10 years’ imprisonment and an unlimited fine. There is currently a guideline for sentencing individuals convicted of the offence for use in magistrates’ courts (www.sentencingcouncil.org.uk/offences/magistrates-court/item/trade-mark-unauthorised-use-of-etc/), produced by the Sentencing Guidelines Council (SGC) in 2008 but there is no guideline for sentencing organisations and no guidelines for use in the Crown Court. As part of a commitment to replace all SGC guidelines, the Sentencing Council decided to develop separate guidelines for individuals and organisations which can be used in both magistrates’ courts and the Crown Court.

The Council decided that the guideline for individuals should apply to adult offenders only as very few under 18s are sentenced for this offence. For the rare cases where the offender is under 18, sentencers will be referred to the Sentencing Council definitive guideline, Sentencing children and young people – overarching principles.

Through this consultation process, the Council is seeking views on:

  • the principal factors that make the offence more or less serious;
  • the additional factors that should influence the sentence;
  • the approach taken to structuring the draft guidelines;
  • the sentences that should be passed for the offence; and
  • anything else that you think should be considered.

In the following sections the proposed guidelines are outlined in detail and you will be asked to give your views. You can give your views by answering some or all of the questions.

Alongside this consultation, the Council has produced a statistical bulletin and a resource assessment. These can be found on the Sentencing Council’s website: www.sentencingcouncil.org.uk/consultations/

Following the conclusion of this consultation exercise, a response will be published at: www.sentencingcouncil.org.uk

We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents’ names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE – We will disregard automatic confidentiality statements generated by an IT system.

In addition, responses may be shared with the Justice Committee of the House of Commons.

Our privacy notice sets out the standards that you can expect from the Sentencing Council when we request or hold personal information (personal data) about you; how you can get access to a copy of your personal data; and what you can do if you think the standards are not being met.

 

Audiences

  • Local authorities
  • Legal professionals
  • Judiciary
  • Police
  • Prosecutors
  • Victims
  • Legal professional bodies
  • Academics

Interests

  • Criminal justice