Bad reproduction of logo = bad defence, rules CA
IPKat - IP news and fun for everyone: Every so often the IPKat reads an appeal against conviction for criminal trade mark infringement that he just knows is going to be hopeless. R v Boulter [2008] EWCA Crim 2375, a decision of the Court of Appeal, Criminal Division, England and Wales, was always going to be one such decision.
The police seized from Boulter a haul of 1,640 DVDs of feature films, 457 DVDs of porno and 232 CDs which bore on the packaging copies of logos of EMI and what the court described as “other companies of similar repute”. Boulter, having pleaded guilty to 19 counts of unauthorised use of a trade mark contrary to the Trade Marks Act 1994 s.92(1)(c), applied for leave to appeal against his conviction, arguing that the material bearing the trade marks was of such poor quality that there was no likelihood of the public being deceived or confused. Lest you imagine that it was the quality of the reproduction of the films and music that was poor, the Kat must explain: it was the reproduction of the logos themselves that was of poor quality.
No doubt stifling their giggles and putting on suitably solemn faces, the Court (Lord JusticeToulson, Mr Justice Griffith Williams J and The Recorder of Winchester) dismissed the application. What they said, in a judgment delivered by Toulson LJ, was this:
* In the case of an alleged infringement under section 10(2) of the Trade Marks 1994 Act (similar marks/goods, similar marks/same goods or same marks/similar goods) giving rise to criminal liability under section 92, a likelihood of confusion had to be proved — but no likelihood of confusion need be proved for liability under section 10(1) (same marks/same goods).
* This was a section 10(1) case and the trade marks, however badly they may…