Not all retailers are offering a full refund to users who return the console for this reason. The stores are taking the line that as the individual units are not “faulty,” the goods are fit for purpose and so comply with the Sales of Goods Act 1979.

If a product is not “safe” for its foreseeable use, then we think it cannot be “fit for purpose” – but whether this applies to the 3DS will only be answered if the issue is litigated, by a consumer or by Trading Standards.

Even if the stores are right, this negative PR will undoubtedly harm the product’s sales.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

Mr Barrett had faced a maximum fine of up to £50,000, or jail time. He pleaded guilty after an investigation by North Yorkshire Trading Standards. He stated that he was not aware he was committing a crime. 

Though the prosecution is to be commended, the size of the penalty, combined with the admission by the authorities that shill bidding is difficult to prosecute, means that without more action being taken, this conviction alone is unlikely to deter future shill bidders.

So do you think that chasing internet crime is a good use of Trading Standards meagre resources – or should they be concentrating on the real risks to consumers like sale of dangerous toys or flammable furnishing?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Barrett, a 39 year old minibus driver from County Durham, had engaged in “shill bidding” – the online practice of using a different username to bid on your own auctions.

In pleading guilty Mr Barrett said that he had not realised that bidding on his own items was a criminal offence.

Mr Barrett is due to be sentenced at Bradford County Court on 21 May where he faces fines up to a maximum of £5,000 for each of the 10 offences.

This will no doubt act as a strong deterrent to other unscrupulous traders and should provide some consolation to those who have paid over the odds.

Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

Warnings from the UK IPO indicate that we all should be particularly aware of the following types of goods which may have all the external appearance of the genuine article:

• mobile phones, and their accessories
• ghd hair straighteners – can be electrically unsafe and potentially life-threatening
• Nintendo DS Lite consoles – the charger could be dangerous
• video games – often contain viruses
• children’s toys and action figures, which may have loose parts or contain toxic materials
• perfumes, cosmetics and personal care items
• alcoholic drinks – high levels of methanol can be lethal
• Christmas lights and batteries

A new campaign – www.realdealmarkets.co.uk- which is supported by the Trading Standards Institute, has been developed to help consumers choose markets and stalls that have been vetted by trading standards. The question is why – is the consumer really that naïve? It is not only the counterfeiters that should bear the blame for this burgeoning criminal industry, the average consumer knows that when he or she is getting a bargain that’s too good to be true then it probably is too good to be true. While consumers obviously need protection they also need to take more personal responsibility for contributing to one of the UK’s growing criminal industries, including restrictions on any remedies available to them.

Posted by Declan Cushley
0121 237 3991
dcushley@brownejacobson.com

High profile brand owners have traditionally been reluctant to take on supermarkets, who of course provide the major retail outlets with many of their products. We said that brand owners would be watching this case very closely indeed, as if Diageo were successful then it could encourage others to come forward with claims.

However, it would appear that Sainsbury’s and Diageo have amicably settled their differences out of court, with an agreement to rebrand (but not rename) the “Pitchers” product. The settlement will avoid further publicity for the case, and perhaps enable Sainsbury’s and Diageo to do business without the wedge of ongoing litigation between them. More significantly, the settlement avoids the risk of setting a dangerous legal precedent. Nevertheless, there is a chance that such a precedent will still be set by the Tesco and Next case, reported on 22 September.

Looking at the new label above (on the right) with the higher profile sainsbury logo and  orange segment; Is this enough to prevent consumers being confused between the Diageo original and Sainsbury’s new product?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The Regulations provide brand owners with an alternative weapon against those looking to trade off the back of their success by specifically banning “the promotion of a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not”. Although the Regulations are predominantly part of the criminal regime, it may be that Diageo use their existence in the civil court for emphasis when presenting the case of an intellectual property right infringement.

It remains to be seen whether an enforcer such as Trading Standards decide to investigate this potential breach of the Regulations. However, if they do this would undoubtedly strengthen Diageo’s case as well as give them a right to apply to the criminal courts for an Order for the forfeiture of Sainsbury’s Pitcher.

Brand owners should be watching this space very closely indeed.

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com