For use alongside criminal proceedings under the Trade Marks Act 1994, the Proceeds of Crime Act 2002 (POCA) is an extremely powerful weapon against counterfeiters, for offences committed after 23 March 2003.
POCA is designed to take the profit out of crime, to crack down on money laundering and to recycle confiscated criminal assets for the benefit of the community. Thanks to effective lobbying by ACG and other rights organisations while it was being drafted, IP crime is one of the ‘lifestyle offences’ so just one conviction for counterfeiting will open the door to criminal confiscation proceedings under POCA.
The Crown Prosecution Service has an excellent POCA guidance section on its website.
In these separate confiscation proceedings, a counterfeiter's assets can be traced back up to six years, and will be confiscated unless they can prove that those assets are NOT the proceeds of a criminal lifestyle. These proceedings can be through the criminal or civil courts:
Currently five Regional Asset Recovery Teams have been established in England & Wales, to maximiase asset recovery under POCA. The teams are made up of officers and staff seconded from various police forces, HM Revenue & Customs, the former Assets Recovery Agency, CPS and the Serious Organised Crime Agency.
ACG campaigned long and hard for resources to be made available to train TS officers as Financial Investigators, so that they could conduct their own investigations under POCA and apply for confiscation orders when prosecuting criminal IP cases.
We also campaigned for all law enforcement agencies to be able to share in the POCA incentivisation scheme, which would enable them to recoup at least some of the considerable costs involved in bringing POCA proceedings.
Both these campaigns eventually bore fruit. Many trading standards departments now have officers who are accredited financial investigators for POCA purposes, and all those in England and Wales are also now included in the incentivisation scheme. Along with other bodies involved in the investigation (police etc), TS can recoup some of the costs of a prosecution by being awarded a percentage of the eventual confiscation order.
For example, using a £90,000 POCA confiscation order:
This allows trading standards in England and Wales to claim up to two-thirds of the second 50%.
This is a brief introduction to a complex subject, but here are some recent cases to illustrate how POCA works in practice.
ACG represents more than 3,000 brands affected by this influx of fakes into the UK and delivers an international network of information, advice and contacts on all aspects of IP protection. Working with Government and law enforcement agencies since 1980, ACG is focused on providing an effective and sustained response to counterfeiting.
Membership with the ACG is the best way to work with government and enforcement bodies to protect your brand. Our Roadshows and training days help you reach out to police, trading standards and border force officers and tell them about your genuine products.