Criminal trade mark offences can apply not only to the distribution and sale of counterfeit goods but also to 'grey' goods, under the Supreme Court's ruling in R v C. Grey goods bear a registered trade mark and were produced with the trade mark owner's consent, but were never permitted to be released onto the market. In this case, the appellants unsuccessfully challenged a Court of Appeal decision that they could be prosecuted for unlawfully selling various branded goods, some of which were counterfeit and some of which were grey goods.
The decision also provides a strong argument that unauthorised parallel imports – that is, goods manufactured and sold with the trade mark owner's authorisation in a non-EU country but which have subsequently been imported and sold in the EU without consent – could also potentially be a criminal offence.
It will also allow brand owners to bring private prosecutions against anyone trading in grey goods, as well as counterfeits. Private prosecutions allow victims of crime greater control over the case and costs, and send a strong message to counterfeiters and those trading in grey goods, who face up to 10 years in prison where successfully convicted.
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