Counterfeit products are a blight on consumers and trade mark proprietors alike. As a High Court case showed, however, the power of trading standards officers to enter private property in the course of trade mark infringement investigations is subject to thorough judicial supervision.
A district judge granted a local authority trading standards department warrants to enter a residential property and two commercial units where counterfeit athleisure and designer clothing was suspected to be present. The warrants were executed by a trading standards officer, accompanied by police officers and authorised representatives of trade mark proprietors.
In challenging the lawfulness of the warrants, the occupier of the properties and four companies in which he had an interest argued, amongst other things, that they had purportedly been issued under a power conferred by the Trade Marks Act 1994. There was no dispute that there is, in fact, no such power.
Rejecting that argument, however, the Court found that, on their true interpretation, the warrants were issued in exercise of the power contained in Paragraph 32(5) of Schedule 5 to the Consumer Rights Act 2015. It would have been good practice for that power to be mentioned in the text of the warrants, but the failure to do so did not render them unlawful.
There was an ample basis on which the district judge could conclude that the trading standards officer had reasonable grounds for her belief that there were products on the premises that she had the power to inspect, or documents that she could require to be produced. He was also entitled to find that there were reasonable grounds for believing it likely that products or documents on the premises would be concealed or interfered with if advance notice of entry were given. The warrants were therefore lawful.