On June 27, 2024, the Supreme Court, Second Chamber (Criminal), issued a conviction against the appellant, a co-owner of a retail establishment, for offering counterfeit products of various prestigious brands, such as Tommy Hilfiger, Ralph Lauren, Levi’s, Calvin Klein, Adidas, Carolina Herrera, Fila, Fred Perry, Lacoste, Nike, Armani, and Guess, without the authorization of the respective trademark’s owners.

As a result of a police intervention at the appellant’s establishment, 872 items were seized, causing a quantifiable damage of €37,238.38. Consequently, the co-perpetrators of the crime were convicted of industrial property offenses. This ruling was appealed to the Provincial Court of Madrid, which dismissed the appeal and fully upheld the original judgment.

The appellant filed a cassation appeal for legal infringement under Article 274.2 of the Criminal Code, which was accepted for processing. The appellant argued that the conviction omitted two essential elements:

  1. The registration of the trademarks had not been established, as the judgment assumed their notoriety without presenting registration information or certificates from the SPTO or the EUIPO.
  2. The counterfeit products did not meet the similarity or identity requirement stipulated by Article 274.2 of the Criminal Code, since criminal protection would exclude cases where the form or price did not lead consumers to believe the product was original.

Before addressing these issues, the court acknowledges that the Trademark Law, in its Article 4, establishes the right of the trademark owner to protection, also safeguarding the interests of consumers and prohibiting third parties from acquiring products that create confusion, even if the consumer has good reason to believe the product is not original.

Regarding the appellant’s first argument, the court concludes that while trademark registration cannot be presumed without being proven in the process, the Provincial Court had already reasoned that the registration was reflected in the expert reports used during the trial. Therefore, the registration of the trademarks was considered established.

The second point is also dismissed, as jurisprudence has established that trademark protection is also granted in the criminal realm when the consumer has serious doubts about the authenticity of the product and acquires it at a significantly lower price than what it sells for in the market.

In conclusion, the court argues that the “credulity or incredulity of the consumer cannot serve as a neutralizing factor for criminal protection.”

Therefore, notwithstanding that the price of the counterfeit product is considerably lower than that of the original, such a circumstance does not preclude its classification as an offense against industrial property. Consequently, the appeal is hereby dismissed, and the appellant is found guilty as the perpetrator of an industrial property offense.

Judgment of the Supreme Court (2nd Chamber) No. 682/2024, of June 27 (ECLI:ES:TS:2024:3642)