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Unauthorised Use of Trade Mark (Section 92 Trade Marks Act 1994)

Trade Marks Act 1994, s.92

  • Either way
  • 10 years' custody

Definition

A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (Trade Marks Act 1994, s.92(1)) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor (a) applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used (i) for labelling or packaging goods, (ii) as a business paper in relation to goods, or (iii) for advertising goods, or (b) uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or (c) has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (Trade Marks Act 1994, s.92(2)) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor (a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) has such an article in his possession, custody or control in the course of a business, knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods. (Trade Marks Act 1994, s.92(3))

Points to prove

  1. A person
  2. with a view to gain for himself or another, or with intent to cause loss to another
  3. and without the consent of the proprietor
  4. applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or sells, lets for hire, offers or exposes for sale or hire or distributes goods bearing such a sign, or has such goods in his possession, custody or control in the course of a business with a view to doing so (s.92(1))
  5. or applies such a sign to labelling, packaging, business paper or advertising material, uses such material in the course of a business, or has such material in his possession, custody or control in the course of a business with a view to doing so (s.92(2))
  6. or makes an article specifically designed or adapted for making copies of such a sign, or has one in his possession, custody or control in the course of a business, knowing or having reason to believe that it has been or is to be used to produce goods or such material (s.92(3))
  7. and the goods are goods in respect of which the trade mark is registered, or the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, its distinctive character or repute (s.92(4))

Unauthorised Use of Trade Mark is an offence under s.92 Trade Marks Act 1994. A person commits an offence who, with a view to gain for himself or another or with intent to cause loss to another, and without the consent of the proprietor, applies to goods or their packaging a sign identical to or likely to be mistaken for a registered trade mark, sells, lets for hire, offers or exposes for sale or hire or distributes goods bearing such a sign, or has such goods in his possession, custody or control in the course of a business with a view to doing so (s.92(1)). The same applies to applying such a sign to labelling, packaging, business paper or advertising material, using such material in the course of a business, or possessing it with a view to doing so (s.92(2)), and to making or possessing in the course of a business an article specifically designed or adapted for making copies of such a sign, knowing or having reason to believe it has been or is to be so used (s.92(3)). No offence is committed unless the goods are goods in respect of which the trade mark is registered, or the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, its distinctive character or repute (s.92(4)). It is a defence to show that the person believed on reasonable grounds that the use of the sign was not an infringement of the registered trade mark (s.92(5)). Maximum sentence: on conviction on indictment, a fine or imprisonment for a term not exceeding ten years, or both; on summary conviction, imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both (s.92(6)).

In practice

This is an either-way offence: it may be tried at the magistrates' court or the Crown Court. Mode of trial depends on the seriousness and the defendant's election. The suspect must be cautioned in accordance with Code C PACE 1984 before any questions about the offence are put to them. Interviews must be audio-recorded (Code E) or, for indictable offences, may be visually recorded (Code F).

Last updated 20 October 2026. Reviewed 20 October 2026