HC Deb 25 July 1988 vol 138 cc215-8

(1) Where articles seized or detained by any enforcement authority are, or appear to that authority to be, goods or material bearing such a mark as is mentioned in subsection (1) of section 58A of this Act, the authority may notify the proprietor of the registered trade mark or his authorised agent of the seizure or detention, as the case may be, and may disclose to him—

  1. (a) the time, and the address of the place, of seizure or detention of the goods or materials;
  2. (b) the nature and quantity of the goods seized or detained
and, if the authority is satisfied that the following information is required for the purpose of preventing the continuance of activities which amount to an offence under section 58A of this Act, or which are being committed abroad and would, if committed within the jurisdiction, amount to such an offence then the authority may also disclose to the said proprietor—
  1. (c) the name and address of the person from whom the goods or materials have been seized or detained;
  2. (d) any information identifying the source from which the goods or materials have come or by which they were produced.

(2) Any disclosure of information or documents made pursuant to this section shall not amount to an offence.'.

Mr. Mills

I apologise to you, Mr. Deputy Speaker. There was some confusion: I had wished to speak on privilege—patent agents and trade mark agents—but the remarkable and exciting pace of our proceedings rather caught me out. I hope that you and the House will forgive me.

Clause 288 introduces one of the most important matters in the Bill—criminal penalties against industrial counterfeiting. It is perhaps mean of me to raise a final point at this time of night, but I congratulate officials and the Minister on a job well done. They have done something to help industry and to ensure that the jobs that we have been losing—perhaps 100,000 of them—through industrial counterfeiting will now be protected against such activities.

My amendment tries to ensure that the communications between the statutory bodies—the trading standards officers, the customs and the police—are as good as they can be, so that information about industrial counterfeiting is exchanged when it is suspected or detected. I raised this in Committee, but I am told by trading standards officers that the solution described by the Minister then was not entirely simple. My amendment would allow freer disclosure of information between the statutory authorities, as well as between trading standards officers, the Customs and industry.

My hon. Friend knows the point that I am making. So as not to detain the House for too long, I shall ask him only two questions. First, is he truly satisfied that we have communication both ways between the statutory authorities? I am assured by the trading standards officers that it is not a simple matter of saying that the powers already exist. Secondly, will he go further and accept my amendment or, if not, make some helpful remarks on the information that will be passed between those authorities and industry?

Mr. Butcher

Amendment No. 278 is very similar to an amendment moved by my hon. Friend the Member for Meriden (Mr. Mills) in Committee. At that time, I said that there was little harm in the authorities disclosing the types of information identified in what are now paragraphs (a) and (b) of subsection (1) of the new clause to be inserted in the Trade Marks Act. However, I said that no specific provision was needed because the authorities were already free to disclose the information. Nothing has happened since to cause me to change my opinion on this point, and I consider that it would be positively misleading to insert a provision along those lines, with the implication that without it disclosure would be prohibited.

That leads me to paragraphs (c) and (d). They also featured in the previous amendment, and I resisted their inclusion on two grounds. The first was that information of this sort necessarily includes an element of judgment on the facts that would prejudge the very matters that must be decided by a court, whether civil or criminal. It would be wrong for the authorities to release to one side only information that may be of use in possible litigation.

Our other reason for rejecting the amendment was that it would be wrong to regard trade mark proprietors or their representatives as being on a par with the official enforcement agencies. If anything, the way in which the amendment is now structured brings that point into stark relief.

I hope that for the reasons that I have given, especially that it would be misleading to insert such a provision, my hon. Friend will sympathetically consider withdrawing his amendment.

Mr. Deputy Speaker

The hon. Gentleman need not do that. His amendment is being discussed with a group.

Amendment agreed to.

Amendments made: No. 126, in page 133, line 8, after '(I)' insert 'or (1A)'.

No. 127, in page 133, line 17, leave out 'that subsection' and insert 'subsection (1)'.

No. 199, in page 133, line 41, leave out from 'may' to 'goods' in line 43 and insert ', if satisfied that at the time of his arrest or charge he had in his possession, custody or control— (a)'.

No. 200, in page 134, leave out lines 4 to 9 and insert 'order that the goods or material be delivered up to such person as the court may direct. (2) For this purpose a person shall be treated as charged with an offence—

  1. (a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;
  2. (b)in Scotland, when he is cautioned, charged or served with a complaint or indictment.
(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), but shall not be made if it appears to the court unlikely that any order will be made under section 58BA (order as to disposal of offending goods or material).'.

No. 201, in page 134, line 14, leave out subsection (4) and insert '; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the goods or material have been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.

No. 202, in page 134, leave out lines 17 to 23 and insert— '(5) A person to whom goods or material are delivered up in pursuance of an order under this section shall retain it pending the making of an order under section 58BA. (6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.

No. 203, in page 134, line 23, at end insert—

'Order as to disposal of offending goods or material

58BA.—(1) Where goods or material have been delivered up in pursuance of an order under section 58B, an application may be made to the court for an order that they be destroyed or forfeited to such person as the court may think fit.

(2) Provision shall be made by rules of court as to the service of notice on persons having an interest in the goods or material, and any such person is entitled—

  1. (a) to appear in proceedings for an order under this section, whether or not he was served with notice, and
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  3. (b) to appeal against any order made, whether or not he appeared;
and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal. (3) Where there is more than one person interested in goods or material, the court shall make such order as it thinks just. (4) References in this section to a person having an interest in goods or material include any person in whose favour an order could be made under this section or under section(Order as to disposal of infringing copy or other article),(Order as to disposal of illicit recordings) or(Order as to disposal of infringing article, &c.) of the Copyright, Designs and Patents Act 1988 (which make similar provision in relation to infringement of copyright, rights in performances and design right).

(5) Proceedings for an order under this section may be brought—

  1. (a) in a county court in England, Wales and Northern Ireland, provided the value of the goods or material in question does not exceed the county court limit for actions in tort, and
  2. (b)in a sheriff court in Scotland;
but this shall not be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.—[Mr. Butcher.]

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