We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
01 February 2021
In its judgment of 14 October 2020, the Madrid Court of Appeal confirmed the condemnatory judgment of Madrid Trial Court Number 25 for a crime against industrial property under Article 274.2 of the Criminal Code. The judgment sentenced the two defendants to:
The proceedings arose after 8,189 products which illicitly reproduced the marks of various musical groups, including Iron Maiden, were seized from an establishment that was open to the public and whose administrators and managers offered, distributed and commercialised the products at the retail level.
The appeal court's confirmatory judgment followed an appeal filed by the defence. The appeal court rejected the appeal, as requested by the public prosecutor and Iron Maiden (acting as a private prosecutor).
The defence maintained that the following errors were present in the trial court's judgment.
Lack of objective requirements for this type of criminal offence
The appellants criticised the two expert reports which confirmed the counterfeit nature of the seized products, claiming that they were based on a comparison of a sample of the products seized (and not all of them), with photographs of both the original products and the registered trademarks.
The appellants also argued that there was no risk of consumer confusion between the original and illicit products. The appellants claimed that the objective element of Article 274 of the Criminal Code requires a risk of confusion between the original goods and seized goods. The appellants also alleged that the seized goods in question would not cause confusion among consumers because they did not incorporate signs which were identical to or could be confused with the originals as:
On the basis of these considerations, the appellants claimed that the trial court had erred in its assessment of the evidence.
Lack of subjective requirement for this criminal offence
The appellants alleged a lack of evidence regarding the mens rea required by the criminal offence, claiming that it had not been proven that the convicted individuals were aware of the musical groups' trademark registrations.
The appeal court refuted the defence's allegations, highlighting the following circumstances.
Existence of objective requirements
The appellants did not challenge the expert reports in their defence brief or during the trial hearing; rather, they raised them for the first time in their appeal. The appeal court held that the scope of the cassation proceedings (and of appeals in general) was strictly limited to issues that had been formally raised by the parties at the first instance. The appeal court also pointed out that the appellants could have requested alternative expert evidence or produced it themselves, which they did not do.
Further, the court stated that extrapolating the results of the expert reports (based on samples of the seized products) to the total number of products seized was fully compliant with the law and procedural practice.
The appeal court also concluded that the two expert reports confirmed that the reproduced signs on the products in question were substantially identical to or could be confused with the registered trademarks. Therefore, they were the correct object of the analysis criticised by the defence.
The appeal court did not expressly pronounce on the appellants' argument concerning the alleged need for a risk of confusion between the seized goods and the original ones, because that was an equivocal interpretation which had been practically superseded by most of the case law.
Existence of mens rea
The appeal court ruled that in reaching its decision regarding the accused's criminal intent, the first-instance court had complied with the rules of logic and the principles of experience when carrying out its assessment based on the evidence presented in the trial hearing. Specifically, the appeal court pointed out that the trial court had properly assessed the existence of criminal intent on the basis of the following facts:
The appeal court fully confirmed the trial court's judgment and convictions.
This judgment is final and definitive.
For further information on this topic please contact Nuria Dominguez de la Torre at Grau & Angulo by telephone (+34 93 2023456) or email (firstname.lastname@example.org). The Grau & Angulo website can be accessed at www.ga-ip.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.