Intellectual Property Offences in England and Wales
Criminal prosecution for intellectual property (IP) offences most commonly arises in the context of the production or sale of counterfeit goods — products bearing unauthorised trademarks, designs, or copyright material. Prosecutions are brought by Trading Standards authorities, the Police Intellectual Property Crime Unit (PIPCU), and in some cases, private prosecutors acting on behalf of rights holders.
Beyond the immediate criminal penalty, those convicted of IP offences frequently face confiscation proceedings under the Proceeds of Crime Act 2002 (POCA), which can result in the seizure of personal assets extending well beyond the direct profits of the offending.
The Legislative Framework
- Trade Marks Act 1994: Protecting registered brand names, logos, and distinctive packaging from unauthorised use.
- Copyright, Designs and Patents Act 1988: Protecting original artistic, literary, musical, and dramatic works.
- Registered Designs Act 1949: Protecting the specific visual appearance of a product.
- Video Recordings Act 2010: Governing the supply and classification of video content.
- Fraud Act 2006: Applied where a dishonest intent to gain is present, often charged alongside primary IP offences.
Counterfeiting and the Proceeds of Crime Act 2002
Counterfeiting and the trading in illicit goods are frequently categorised as money laundering under the Proceeds of Crime Act 2002. Under POCA, following a conviction, the court has the power to make a confiscation order calculated by reference to the defendant's total benefit from criminal conduct over a specified period.
In practice, this means the court can assume that all income generated by the defendant during the relevant period is criminal property, unless the defendant can demonstrate otherwise. The confiscation order can extend to cash, vehicles, property, and other assets — even those not directly connected to the specific offending. The financial consequences can substantially exceed the criminal fine.
The Importance of the Police Interview
In IP cases involving POCA proceedings, the police interview is a particularly important stage. It is common for suspects to inadvertently disclose, or to be induced to estimate, a volume of sales that is higher than can be demonstrated by the prosecution's own evidence. Those figures can then be used as the basis for the benefit calculation in confiscation proceedings, materially increasing the financial exposure of the defendant.
Legal advice before and during the interview — including a clear understanding of what to say and what not to say in relation to the scale and duration of any trading activity — is essential in every IP case.
Money Laundering Charges
Where a person or business generates profit from the sale of counterfeit or illicit goods, they may also face charges under Part 7 of the Proceeds of Crime Act 2002. These charges can be brought even where the primary IP offence is relatively limited in scale, and the money laundering charges can attract a maximum sentence of 14 years' imprisonment.
What to Do if You Are Under Investigation
If your premises have been searched, stock has been seized, or you have been asked to attend a police interview in connection with an IP investigation, seek specialist legal advice immediately. The management of what is said during interview — and what is not said — can have a decisive effect on the financial outcome of any subsequent confiscation proceedings. Do not speak to investigators without a solicitor present.