Risk of significant harm would include risk of serious physical harm or death to end users. The guidelines, launched this week and scheduled to apply from 1 October, apply to the offence of using a trade mark without consent. They will replace the current guideline published in 2008, which only applies to individuals and is used only in magistrates’ courts.
The proposed new guidelines assess harm based on monetary value, with seriousness increased by any significant harm suffered by the trade mark owner or risk incurred by the purchaser or end user. They will apply to organisations as well as individuals for the first time and to Crown Court cases.
The starting point for an organisation running a £2m counterfeit operation would be a fine in the range of £150,000 to £450,000. For an individual, it would be three to seven years in custody.
Sentencing Council member, District Judge Mike Fanning said the guidelines ‘will enable courts to impose sentences that are consistent and proportionate in these cases which can be complicated and, by reason of the relative infrequency with which they come before the courts, unfamiliar to many sentencers’.
Counterfeit goods can include car parts and electrical equipment as well as toys and clothes, and are unlikely to have completed the relevant safety tests.
Prosecutions are relatively rare. In 2019, about 370 individuals were sentenced. More than a third received a community sentence, 31% received a fine, 17% received a suspended sentence, five per cent were discharged, six per cent received an alternative disposal such as confiscation or one day in police cells, and four per cent went to prison for an average of one year. The longest sentence was 36 months.
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