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For certain types of trade mark infringement cases (such as wilful infringement for the purpose of manufacturing counterfeit goods), the usual civil remedies may be considered inadequate by the trade mark owner and from a public policy perspective. For such cases, there are criminal sanctions available under the Trade Marks Act 1994 (TMA 1994). These sanctions are most often used against parties involved in counterfeiting goods, where false trade marks are applied in order to imitate the products of leading manufacturers. However, TMA 1994 has a far wider reach to impose criminal penalties for other forms of unauthorised trade mark use, including offences without any evidence of dishonesty.
Trade mark crime should be considered in the wider context of IP crime and, in particular, may overlap with copyright crime. For example, the production of a pirate film on DVD would be a copyright crime while the production of the DVD packaging including copies of a film studio's marks would be a trade mark crime. For more information on copyright crime, see Practice Note: Copyright criminal offences.
The principal criminal offence under TMA 1994, s 92 concerns the unauthorised use of a trade mark either directly applied to goods or used in packaging, paperwork and advertising materials or articles designed for copying a trade mark. The mark used must be identical to, or likely to
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