New guidelines to sentence trade mark offences published

5 August 2021

The Sentencing Council has today published, in accordance with section 120 of the Coroners and Justice Act 2009, new definitive guidelines to be used by the Crown Court and magistrates’ courts in England and Wales when sentencing the offence of unauthorised use of a trade mark. The new guidelines will come into effect on 1 October 2021.

There are two sentencing guidelines for the offence contrary to section 92 of the Trade Marks Act 1994: one for individuals and one for organisations. The guidelines apply to the offence of using a trade mark without the owner’s consent, which can include possessing or selling counterfeit goods, or counterfeiting or possessing the means of counterfeiting goods, with a view to making a gain or causing a loss.

Currently, there is a guideline for sentencing individuals convicted of the offence for use in magistrates’ courts produced by the Sentencing Guidelines Council (SGC) in 2008 but there is no guideline for sentencing organisations and no guidelines for use in the Crown Court. Unauthorised use of a trade mark is an offence that most judges and magistrates will sentence only rarely and these guidelines provide sentencers with a clear but detailed framework for sentencing this unfamiliar offence.

The guidelines are available on the Sentencing Council website Council website here. Alongside the guidelines, we have also published a response to the consultation and other related documents.