The case of R v Torbay District Council ex p Singh (Satnam), (The Times 4 July 1999) shows the perils of Trade Mark law, insofar as it can threaten any business.

Mr Singh was offered some children's clothing for him to sell through his market stall. It bore the mark of the Tele-Tubby. He asked his supplier to confirm that the goods were not counterfeit, and did not infringe any registered trade mark. He also took the 'Draper's Record', and had not seen in there, any notice of a Tele- Tubby's trade mark being registered. Comforted, but unwisely so, he offered the goods for sale, and as you might expect, having read this far, he turned out to be wrong, and was prosecuted.

He argued, convincingly, that he had done what he could to avoid liability, and that the statutory defence relating the 'manner of use' should come to his aid. The magistrates acquitted him, and the prosecution appealed. The divisional court held that the defence was not available. It recognised the difficulty of imposing what was almost strict liability, but said that the defence applied only to somebody who might know of the potential infringement, but thought, perhaps, that for some other good reason, his 'manner of use' did not infringe the mark. The defence that he had been diligent in avoiding an offence, and that he did not know of the existence of the trade mark, was not a sufficient defence. If the goods infringe the mark, they do so, and the offence is committed without any guilty mind.

The court pointed out that Trade Marks are in principle public, and that anyone in doubt as to the existence of a Trade Mark, may search the registers. Modesty, no doubt, prevented them from mentioning the cost, over £100 pounds per word searched for. In practice a small trader will never carry out a search, and could not afford to, and he must continue trade at his peril.

We are therefore left with a position where a trader, though honest, and though he makes diligent, but not full enquiry, may still find himself in breach of the criminal law. He can, in practice hope only that the magistrates will keep any penalty low.