Procurator Fiscal v. Gallacher [2006] ScotSC 6 (17 February 2006)

Procurator Fiscal v. Gallacher [2006] ScotSC 6 (17 February 2006)

The Crown failed to prove beyond reasonable doubt that the accused's use of the Rangers trade marks on hats and scarves amounted to 'trade mark use' liable to jeopardise the guarantee of origin, as required for criminal liability under Section 92(1)(c) of the Trade Marks Act 1994. The evidence, particularly...

Source-derived case information.

Citation
[2006] ScotSC 6
Parties
Prosecution: Procurator Fiscal, Glasgow; Accused: Joseph Gallacher
Jurisdiction
Scotland
Judgment Date
17 February 2006
Procedural Posture
Criminal / Trial Judgment
Outcome
acquittal
Legal Topics
Trade Mark Infringement, Counterfeit Goods, Burden of Proof, Statutory Defence, Use as Trade Mark
Criminal Law Intellectual Property Law Trade Mark Infringement Counterfeit Goods Burden of Proof Statutory Defence Use as Trade Mark

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Summary, issues, holding and outcome

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Parties

Procurator Fiscal, Glasgow

Prosecution

Joseph Gallacher

Accused

Procedural Posture

Criminal / Trial Judgment

Legal Issues

  1. 1 Whether the accused's use of Rangers Football Club trade marks on hats and scarves constituted 'trade mark use' under Section 92(1)(c) of the Trade Marks Act 1994
  2. 2 Whether such use was liable to jeopardise the guarantee of origin, thus amounting to an infringement under Section 10 of the Act
  3. 3 Whether the statutory defence under Section 92(5) was established by the accused

Ratio Decidendi

The Crown failed to prove beyond reasonable doubt that the accused's use of the Rangers trade marks on hats and scarves amounted to 'trade mark use' liable to jeopardise the guarantee of origin, as required for criminal liability under Section 92(1)(c) of the Trade Marks Act 1994. The evidence, particularly regarding jeopardy to the guarantee of origin, was insufficient. Even if infringement had been established, the use could be characterised as an indication of the characteristics of the goods under Section 11(2)(b), providing a further defence. The accused did not establish the statutory defence under Section 92(5), but this was not determinative given the Crown's failure to prove...

Court Disposition

acquittal

Orders

  • Accused acquitted of both charges under Section 92(1)(c) of the Trade Marks Act 1994