A novel argument was put to the Court of Appeal recently in defence of a claim of trade mark infringement. The case involved the prosecution of an individual who pirated copies of DVD's and CD's.
The accused's defence was that the copies of the third party logo's were so poor that they did not amount to trade mark infringement. The argument being advanced was that no-one would think that the origin of the material was the trade mark owner and therefore "use of the trade marks was not likely to jeapordise the guarantee of origin" that the owners logo would convey.
The Court rejected this argument on the grounds (amongst others) that to accept the argument would assist the vice of the counterfeiter who sells goods as "genuine fakes".