In landmark ruling, a local court has found a Bridgetown businessman guilty of trademark infringement, in what was the first case of its kind here.
Director of Ouch Boutique Grenville Ricardo Delpeache this morning was convicted of selling fake products from Rihanna’s PUMA line.
However, standing in the defendant’s box in the District ‘A’ Traffic Court, wearing a white jacket and red shirt, it was a relieved Delpeache who found out from Magistrate Graveney Bannister that he was not likely to go to jail for the offence.
“I don’t think it likely that the court would impose a prison term for a first time offence, but just that you would not be caught off guard when you return, this offence carries a maximum fine of $10,000 or six months in prison,” Bannister warned.
The 44-year-old Delpeache, whose store is located in Swan Street, was charged with selling counterfeit PUMA Fenty by Rihanna and Creeper Sneakers and PUMA Fenty slippers, as well as exposing for sale PUMA slipper, shoes and backpacks in May last year.
Before handing down the verdict Bannister suggested that Delpeache was not entirely truthful during the hearing.
The magistrate indicated that he grappled with the question of whether or not the businessman, who by his own admission was an experienced merchant, was clueless as to the authenticity of the items, or whether he simply shut his eyes to the obvious.
Delpeache, of Passage Gardens, Passage Road, St Michael, testified yesterday that he believed he was buying genuine PUMA products from storefronts in the United States.
“I only shop in storefronts [that] I believe to be registered and governed under US laws,” the boutique owner told the court.
He explained under oath then that the 17 pairs of slippers were from a batch of two dozen which he had purchased in early 2016 for US$50 per pair. Delpeache retailed the product for BDS$200, while he bought the backpacks for $19.95 plus tax. He further stated that he thought the products were genuine as he had examined them and “they were marked PUMA”.
“I does look at the one on display before I buy them as I can only see the one on display . . . Then I rush and pack them in the suitcase, but I don’t keep the boxes,” he testified, adding that he also did not read the labels on the shoes or the bags.
However, Acting Assistant Superintendent of Police Trevor Blackman, who prosecuted the case, rejected this defence, arguing that the PUMA trademark is registered in Barbados and the onus was the defendant to ensure that the items were the genuine article.
“He did not ask any questions. The accused is not in business for two years. Ouch Boutique has been in business for 12 years. He is not a novice, he also revealed that he has been in business for the last 20 years, travelling for business at least once month. He wants the court to accept that the items are old stock from back in 2016. Whether or not he bought them in 2016 or 2017, they were seized on May 2017. So it is irrelevant because they were being offered for sale.
“His account has to be taken with a pinch of salt, his explanation should not be believed. He also said he knows what is brand and what is not brand, he never sought to ensure that the products were genuine and not knockoffs. Puma is registered in Barbados and has the trademark signs available for the public,” Blackman argued.
Having heard both sides, the magistrate told the accused that his interpretation of the case facts and the law was in line with those put forward by the prosecutor.
Bannister also reminded the accused that he admitted to knowing the difference between brand and non-brand items, stressing that he did “not accept the evidence that as an experienced businessman that he just went to a storefront and look at the items and bought them”.
“During cross-examination I have also had the benefit of observing the accused and he appeared too evasive and economical with the truth at best,” the magistrate said before informing Delpeache that his bail would continue to stand and that he was expected to return to court on April 17, 2018.
Following the verdict Delpeache’s lead attorney Satcha Kissoon told Barbados TODAY he was disappointed with the magistrate’s decision, and gave notice that he intended to appeal the ruling within the next seven days.
“We are obviously disappointed with the court’s ruling. The evidence from our perspective is that this is a businessman who did all that he could do and that would be expected of a businessman with this type of trade. He did not trade actively in PUMA, only five per cent of his business was made up of the brand, so this not someone who claims to be an expert. He bought these goods from an established storefront and tradeshow, so there is little more that someone could have done under those circumstances,” Kissoon argued.
A second counterfeit case, this one involving Rihanna’s uncle Leroy Fitzgerald Brathwaite, is also scheduled to go before the court.
The 53-year-old businessman of 1st Avenue, Gooding Road, Station Hill, St Michael is accused of committing three offences under Section 15 of the Consumer Protection Act on May 29 by falsely representing that 11 pairs of slippers and 13 t-shirts were of a particular PUMA standard, quality, style or model.
He is also accused of exposing the goods for sale on the same day, intending to benefit from their sale, and exposing the items for sale without the consent of the owner of the PUMA trademark.
Brathwaite has pleaded not guilty to the charges.