CCJ upholds convictions for Puma trade mark offences

SOURCE: CMC – The Trinidad-based Caribbean Court of Justice (CCJ) Friday dismissed an appeal that sought to overturn the conviction of businessman Grenville Ricardo Delpeache, who had been convicted in a Barbados court on trade mark offences as a result of the sale of counterfeit Puma items.

The CCJ, which heard the appeal on March 25, this year, has now affirmed the orders of the Barbados Court of Appeal.

The courts were told that on May 13, 2017 a customer purchased what she thought was a pair of ‘Puma’ brand slippers from Ouch Boutique, whose sole director is Delpeache. The customer later suspected the slippers were fake and made a police report.

A warrant was executed at Ouch Boutique and the police seized 17 pairs of slippers, seven single shoes and thirty-one haversacks which they believed to be fake Puma products.

On November 24, Delpeache, was charged with three offences under and during his trial in the Magistrates Court, he relied on defences that the company, ought to have been charged instead of him and that he acted with a reasonable belief that the products were genuine.

But on February 20, 2018, Delpeache was found guilty of the three offences and fined a total of BDS$15,000 (One Barbados dollar=US$0.50 cents).

But he appealed to the Court of Appeal were his conviction and sentence were upheld.

The CCJ, Barbados. Highest court, had to determine whether the charges brought against Delpeache personally, should have been brought against the company, which in law, is its own person as well as whether he should have been charged for being complicit in the crimes that were allegedly committed by the company.

The CCJ was also asked to determine whether the Commissioner of Police should have obtained the direction of the Director of Public Prosecutions (DPP) before bringing the prosecution.

But by a majority of three to two, the CCJ dismissed the appeal.

In a judgment authored by Justice Barrow, the Court decided that Delpeache was properly charged with the CCJ indicating that it was of the view that where an individual, acting for and through a company, personally performs criminal acts in conducting the company’s business, that individual may be prosecuted for those acts.

The individual therefore gains no protection from the law which recognized that the company is its own person. As Delpeache personally committed the crimes, there was no need to charge him for being complicit in crimes that were allegedly committed by the company,” the CCJ ruled.

It said that the DPP’s direction was therefore not needed before charging him.

The CCJ also ruled that Delpeache personally committed the offences and could be prosecuted. Where a person is prosecuted for offences, he personally committed, the direction of the DPP is not needed. In cases of prosecution for trademark offences, the statutory provision requiring such direction does not even apply, the CCJ ruled

But in a dissenting opinion, Justices Burgess and Anderson were of the view that the company had, in law, committed the offences.

They said the company was therefore liable for the commission of the offences as a principal offender and Delpeache, the director, was only liable to be prosecuted and punished as an accessory or secondary party.

Consequently, Delpeache should not have been prosecuted as a principal offender nor held guilty of the offences charged. Further, the DPP’s direction was required when proceeding against a director and should have been obtained in this case, they said in their dissenting ruling.

They also said as there was no evidence that the DPP gave his direction to charge Delpeache, he was not properly charged, prosecuted, and convicted for the offences.

For those reasons, the judges said that they would have allowed the appeal.