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Anti-counterfeiting

Counterfeiting is the illegal manufacture and sale of branded replicas of a product. Crucially, a counterfeit good will include the trade mark used in association with the copied product (without the permission of the trade mark owner). The trade mark might be affixed to the product itself, its packaging or in marking material, such as on a website.

Counterfeit goods are commonly referred to as ‘fakes’ and are often of inferior quality to the product they imitate. Certain types of counterfeit goods such as children's toys, pharmaceuticals, foods and electrical equipment may pose a public safety risk. Typically, counterfeit goods are produced in regions where manufacturing costs are low such as Asia and Eastern Europe. Consumers are either duped into buying a fake or, especially in the field of designer clothes, knowingly purchase a cheap ‘knock off’.

Counterfeit goods offences under the Trade Marks Act 1994

As well as civil liability for trade mark infringement, the Trade Marks Act 1994 (TMA 1994) sets out a number of criminal offences relating to the unauthorised use of a trade mark in relation to goods. Key offences set out in

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Court of Appeal dismisses appeal against decision that various uses of ‘Merck’ breached an injunction (Merck v Merck)

IP analysis: The Court of Appeal held that the defendants (collectively ‘Merck US’) had breached the injunction granted by the High Court following the long-running trade mark dispute with the claimants (‘Merck Global’). In those proceedings, the court had been asked to determine various questions relating to the interpretation of co-existence agreements between the two pharmaceutical companies. Lord Justice Arnold, giving the leading judgment with which Lord Justice Philips and Lady Justice Andrews agreed, rejected all four grounds of Merck US’s appeal. In doing so, the Court of Appeal confirmed that an application for declaratory relief is an appropriate response to a breach of an injunction, even if proceedings for contempt of court are a remedy which is available to the aggrieved party. This is of note to practitioners as it means parties are not required to commence proceedings for contempt of court, which must be proved at the criminal standard. The court also provided helpful clarification on ’UK-specific’ in the context of website targeting and the definition of ‘inadvertent error’. These comments will be of particular interest to those advising on online enforcement issues, and those advising on global co-existence agreements. Written by Sean Ibbetson, senior associate and Timothy Minton, trainee at Bristows LLP.

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