UK Offence Report

Falsely representing trade mark as a Community trade mark

regulation 9(1) of The Community Trade Mark Regulations 2006

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 It is an offence for

a person—

a falsely to represent that

a mark is

a Community trade mark, or

b to make

a false representation as to the goods or services for which

a Community trade mark is registered, knowing or having reason to believe that the representation is false.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
making a false or misleading statement
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 9(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Entering a figure on a form or return that is known to be wrong under the Community Trade Mark Regulations 2006.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
Not determined

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
5 April 2006
In force from
29 April 2006
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations make provision for the operation of the Council Regulation (EC) No. 40/94 of 20th December 1993 on the Community trade mark (O.J. No. L 11, 14.1.94, p.1) (“the Community Trade Mark Regulation”). A Community trade mark registered at the Office for Harmonization in the Internal Market (trade marks and designs) under the Community Trade Mark Regulation has effect throughout the Community. As a result of the Community’s accession to the Madrid Agreement Concerning the International Registration of Marks (adopted at Madrid on 27th June 1989), holders of an international registration under that Protocol may apply for protection of their marks under the Community trade mark system; and conversely applicants for, or proprietors of, a Community trade mark may apply for international protection of their marks under the Protocol. The provision made by these Regulations in respect of the Community trade mark also extends to marks protected under that Protocol in the territory of the Community. Regulations 3 and 4 provides for the procedure for determining the invalidity, or liability to revocation, of the registration of a trade mark from which a Community trade mark claims seniority. Regulation 5 sets out the sanctions available under national law for infringement of a Community trade mark. It also applies to such marks the provisions of the Trade Marks Act 1994 (c. 26) (“the 1994 Act”) which deal with infringement proceedings. Regulation 6 applies to Community trade marks the provisions of the 1994 Act dealing with groundless threats of infringement. Regulation 7 and 8 applies the provisions to Community trade marks of the 1994 Act dealing with the importation of infringing goods, materials and articles, and offences and forfeiture. Regulation 9 makes it a criminal offence to falsely represent that a mark is a Community trade mark or to make false representations as to the goods and services for which a Community trade mark is registered. Regulation 10 provides for the conversion of a Community trade mark, or an application for a Community trade mark, into an application for registration under the 1994 Act. Regulation 11 provides the privilege for communications with persons on the list of professional representatives maintained in pursuance of Article 89 of the Community Trade Mark Regulation. Regulation 12 designates the courts in the United Kingdom having jurisdiction over proceedings arising out of the Community Trade Mark Regulation. These Regulations replace the Community Trade Mark Regulations 1996 (SI 1996/1908).

Read the full note and every offence in this instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source