Recent news stories about members of the public being prosecuted for selling unofficial branded goods on eBay and other on-line trading sites are an important reminder to be very careful what you sell. You could easily find yourself committing a criminal offence, that could result in the loss of your liberty.
As Jeremy Asher of Ashfords explains:
"Many products sold on the internet are not genuine. Enormous care needs to be taken by the huge number of people who now trade in products online, either as their only source of income, or to supplement their income.
The Trade Marks Act 1994 imposes a penalty of up to 10 years imprisonment for those selling items which are likely to be mistaken for genuine branded products. The possession of such items intended for sale also falls within this legislation.
Recent cases have underlined the fact the Courts willnot hesitate to impose prison sentences upon people charged with Trade Mark Act offences. Registered trade mark owners are becoming more protective of their intellectual property rights, with many now bringing private prosecutions. Trading Standards are also becoming more active in this area. It is a fact that the Courts treat the theft of intellectual property more seriously than the theft of physical property, as the maximum sentence under the Theft Act 1968 is only 7 years imprisonment.
The only defence available is for the defendant to prove that they had made enquiries with the holder of the registered trade mark, to ascertain whether or not the product they intended to sell was genuine, and that they had obtained the consent of the trade mark holder to sell that product. The onus is also on the seller to ascertain whether a registered trade mark exists in the first place."
As Carl Steele, a partner and intellectual property law expert at Ashfords, explains, the law in this area is going to get even tougher in the near future:
"Parliament recently passed the Intellectual Property Act 2014, which gives the Secretary of State the power to introduce new criminal offences relating to unauthorised copies of registered designs. I expect these new offences to come into force later this year.
In summary, a person will commit an offence if, in the course of a business, they intentionally copy a registered design, so as to make a product exactly, or virtually identical, to that design, and they do so knowing, or having reason to believe, that the design is a registered design and without the consent of the registered proprietor of the design.
They will also commit an offence if, in the course of a business, they deal in such products, for example, they import, offer to sell, or sell them, where they know or have reason to believe that a registered design has been intentionally copied without the consent of the registered proprietor of the design.
If found guilty, they could be fined or imprisoned for up to 10 years."
Jeremy's and Carl's advice is as follows:
"If you have any reason to think that what you are planning to sell online are probably not genuine, official goods that originated from the brand or designer owner, then don't proceed. Even if you only sell a few items via eBay, it could result in you ending up with a criminal conviction, a fine and even a prison sentence. It is simply not worth it."