Prison sentence imposed for sale of fake Nokia phones

The Barcelona Court of Appeal has imposed a one-year prison sentence against the defendant under Article 274(2) of the Penal Code for infringement of the trademark NOKIA (January 14 2008). The court also ordered that the defendant pay compensation to Nokia in an amount to be determined during the enforcement phase.

In April 2006 some fake Nokia 3310 mobile phones were seized during a police raid, along with hundreds of mobile phone accessories (eg, carrying cases, covers, headsets and neck straps). Nokia started proceedings against the defendant.

The Criminal Court imposed a sentence of two years' imprisonment, stating that the offer of counterfeit goods for sale is punishable under the law. The Barcelona Court of Appeal reduced the sentence to one year's imprisonment.

The Court of Appeal confirmed that a criminal offence had been committed based on the following findings:

• The defendant sold mobile phones and accessories bearing Nokia's trademark;
  
  
• The defendant was not authorized to use Nokia's trademark; and
  
  
• Nokia is the owner of the IP rights.

In addition, the court found that the defendant was aware that the goods were counterfeit. It agreed with the following findings of the Criminal Court:

• The defendant had worked in the mobile phone industry for many years and could not be unaware of the NOKIA trademark or of Nokia's official distribution channels.
  
  
• The defendant purchased the mobile phones semi-clandestinely and failed to provide any documents demonstrating the origin of the goods (eg, invoices, delivery notes, receipts and contact details of the salespeople). The defendant's statements of innocence were groundless.
  
  
• Only a small amount of the goods seized were on display for sale, the rest being hidden in a stockroom.
  
  
• The defendant was the subject of other legal proceedings following the seizure of counterfeit mobile phone accessories two years ago.

In reaching its decision, the Barcelona Court of Appeal followed the approach adopted by several other appellate courts in determining whether a defendant acted intentionally.

Agustí Valls, Grau & Angulo, Barcelona