The two separate guidelines apply to the single offence of using a trade mark without the owner’s consent, which can include possessing or selling counterfeit goods, or counterfeiting or possessing the means of counterfeiting goods, with a view to making a gain or causing a loss.
Under the new guidelines, offenders who run a sophisticated operation or risk significant harm – including risk of serious physical harm or death to end users – will receive the highest level of sentences.
The guidelines, Organisations: Unauthorised use of a trade mark and Individuals: Unauthorised use of a trade mark, will apply to all courts across England and Wales. The latter will replace the current guideline published in 2008, which is used in Magistrates’ Courtss and applies to individuals only.
The new guidelines will provide a clear structure for courts when sentencing this offence, which can bring financial and reputational loss to companies and can put purchasers at risk from substandard goods. They will come into force on 1 October 2021.