Fraud and financial crime
Unauthorised use of a trade mark etc.
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Either way
- Maximum penalty
- 10 years’ custody
Actus reus
- With a view to gain or intent to cause loss, applies a sign identical/similar to a registered trade mark, or sells/offers goods bearing such a sign, or has possession of such goods in the course of a business (Trade Marks Act 1994, s.92 — read the charged subsection).
Mens rea
- View to gain or intent to cause loss. It is a defence to show belief on reasonable grounds that the use was not an infringement (s.92(5)).
Defences
s.92(5) reasonable belief that use did not infringe · Not in the course of a business (where that is required) · Sign not used as charged · No view to gain / intent to cause loss
Sentencing Council
Sentencing Council guideline effective 01 October 2021. Offence range: Discharge – 7 years’ custody Use this guideline when the offender is an individual.
At the police station
Market and warehouse seizures are typical. This is not a Fraud Act s.2 charge unless one is added.
When to involve a rep or solicitor
Police station advice is free under legal aid and is not means-tested.
Authoritative sources for this page
Statute plus Sentencing Council (and CPS where listed) are the two primary sources we used for mode of trial, maximum and elements. Case links are from our verified registry only.
- Statute:Trade Marks Act 1994, s.92 ↗
- Sentencing Council:Sentencing Council definitive guideline ↗
- CPS:CPS — Fraud Act 2006 ↗