Section 29 of the Cybercrime Code Act 2016 is the counterfeit goods provision. It is narrower than its copyright counterpart.
Section 29
(a) sells; or
(b) exposes for sale,
goods or services to which a forgery of a registered trademark is falsely applied in contravention of the Trade Marks Act (Chapter 385), or any other laws relating to trademarks, is guilty of a crime.
Penalty: natural person — imprisonment up to 15 years; or a fine up to K100,000; or an ICT prohibition for the term of imprisonment plus two years; or all or any of them. Body corporate — a fine up to K1,000,000.
The four elements
| Element | What must be shown |
|---|---|
| Electronic system or device | The selling or exposing for sale is done using one — an online marketplace, a social media page, a messaging service |
| Sells or exposes for sale | An actual sale, or an offer — a listing is an exposure for sale |
| Registered trade mark | The mark must be registered — see the trade marks series |
| Forgery falsely applied | A forgery of the mark, falsely applied to the goods or services, in contravention of the Trade Marks Act |
| Knowingly or repeatedly | Either is enough — note the disjunctive |
Sections 29 and 30 use “or” where section 28 uses “and”.
On the words as drafted, a person who sells counterfeit goods repeatedly commits the offence even if the second requirement — knowledge — is not separately established. The opening words still require the conduct to be intentional or reckless and without lawful excuse, so the mental element is not absent altogether; but the threshold is lower than under section 28.
Whether that difference is deliberate or a drafting inconsistency, no PNG case has yet decided.
Only registered marks
The section speaks of “a registered trademark”. An unregistered mark, however well known, is outside it.
The owner of an unregistered mark is not without remedy — the action for passing off remains available, as does opposition to a later application. But those are civil, and the criminal provision in section 29 is not engaged.
That is a practical reason for a business trading in Papua New Guinea to register its marks. Registration is what makes section 29 available, and with it a 15-year offence and a K1,000,000 corporate fine.
Section 29 does not reach manufacture, importation, storage or advertising as such. Those are dealt with by the Trade Marks Act and the customs legislation.
What it does reach is the point at which counterfeit goods are offered to the public — and online, that is where most of the trade now happens. A listing on a marketplace or a post advertising the goods for sale on social media is an exposure for sale using an electronic device.
Note that services are included as well as goods, which matters where a service mark is copied.
Sellers, platforms and page owners
Unlike section 28, section 29 has no “facilitates or enables” limb. The person who must sell or expose for sale is the offender.
A marketplace operator that merely hosts a listing does not, on the face of section 29, sell or expose for sale. Its position is governed by section 44, which sets out when an ICT service provider is criminally liable — in essence, where it has knowledge and control, or fails to comply with an order.
An operator that is told of counterfeit listings and leaves them up is in a materially different position from one that acts.
For trade mark owners
- Register. Section 29 protects registered marks only.
- Record the evidence. Screenshots of the listing, the seller’s account details, the price, the date. Police can obtain production orders under section 35 for subscriber information and preservation notices under section 36.
- Consider both routes. The Trade Marks Act provides civil remedies including injunctions and damages; section 29 provides a criminal offence with a heavy maximum.
- Notify the platform. A documented notice engages section 44 for the operator and is often the fastest route to removal.
Section 29 is not listed in Schedule 2 and cannot be dealt with summarily. See also section 30 and section 31.
Sources
- Cybercrime Code Act 2016 — ss 2, 28, 29, 30, 35, 36, 44, 48; Schedule 2
- Trade Marks Act (Chapter 385)
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.