Infringement, not consumer deceit, is the key to criminal prosecuition, says Argentine court

Matos Berna, Beatriz Noelia s/ Recurso de casación, Docket No. 361/2013, is a ruling of 26 February 2014 from the Argentine Federal Criminal Court of Cassation involved an action brought by the public prosecutor against Beatriz Matos Berna, who was accused of selling counterfeit trade marked products on the street.

The trial court acquitted the defendant on charges of sale of counterfeit trade marked goods  under Law No. 22,362, Section 31(d), following earlier decisions to the effect that the circumstances of the case (in this instance the street sale of ostensibly counterfeit products in small quantities) excluded the possibility of consumer deceit, posed no harm to the trade mark holder and did not therefore constitute a criminal offence.  After the prosecutor's appeal to the Federal Court of Appeals failed, the prosecutor appealed further to the Federal Criminal Court of Cassation, arguing that consumer deceit was not a requisite element of the crime in question. Division IV of Federal Criminal Court of Cassation agreed in its majority decision and reversed the lower courts’ rulings, ordering that the criminal proceedings continue.

Said the majority, the risk of consumer confusion is not a requisite for a successful prosecution on charges of criminal trade mark counterfeiting -- but the violation of the trade mark owner’s exclusive rights over the mark is.

Source: "Consumer Deceit Is Not Required to Prosecute Counterfeiting at Criminal Courts", by Martín Chajchir (Marval, O’Farrell & Mairal, Buenos Aires), pubnlished in the INTA Bulletin July 1, 2014 Vol. 69 No. 12