News 26th Feb 2018

Counterfeit Airbags Prosecution under the Trade Marks Act 1994

A car parts dealer from Dorset has been sentenced for trading in counterfeit vehicle airbags, having pleaded guilty to offences under the Trade Marks Act 1994.

This is believed to be the first UK prosecution of this nature, following similar cases in North America.

In November 2015, Honda Europe Ltd. commissioned the test purchase of items offered for sale by EU Trading Ltd., a company run by Robert Czernik. Their findings were passed to the UK Police Intellectual Property Unit.  At Czernik’s address, police found hundreds of fake airbag components, including plastic airbag covers (bearing brand emblems), badges and complete airbag units ready for sale. There were also “grey” goods (see R v. C & others [2017] UKSC 58), such as Vauxhall branded airbags which should have been destroyed for failing tests. Representatives from 12 car brands assisted the police investigation.

Czernik’s defence was that he believed the parts to be genuine, the goods having been sourced from China, with documents and assurances indicating there was no illegality; in other words, he relied on the “reasonable belief in no infringement” defence in section 92(5). The prosecution argued that sections 9 to 12 of the 1994 Act define infringement for the purposes of the entire Act, and so the issue was not whether the defendant believed that the items were genuine, but whether he believed (on reasonable grounds) that he had the consent of the trade mark proprietors to use the items in the relevant manner, or alternatively, whether he believed (on reasonable grounds) that the goods had been put on the market in the EEA with the trade mark proprietors’ consent. Having accepted that he had sourced the items from China, without claiming that trade mark proprietors had given the necessary consents, the defendant could have no defence.

After protracted discussion about the legal issues in court, the defendant pleaded guilty to the indictment on 19th February 2018 when the matter was listed for trial. He was sentenced on 22nd February 2018. Notwithstanding that the offence carried near strict liability, the court found that the custody threshold was clearly passed, given the numerous safety concerns about the products being sold.

The case has been covered widely in the press. To read more, click here

Julia Faure Walker advised and represented the Crown in proceedings from April 2017 to February 2018.  She was instructed by Stephen Rowland of the CPS Specialist Fraud Division.

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