When is a director jointly liable for trade mark infringement?

Tom Griffin, Solicitor

A recent IPEC decision provides further guidance on the scope of directors’ personal liability for trade mark infringement, especially on when a director may be held jointly liable for infringing acts carried out by their company.

The recent Intellectual Property Enterprise Court decision of Advance Magazine Publishers Inc. & Anor v Cornucopia Entertainment Limited & Anor [2026] EWHC 1488 (IPEC) is a timely reminder to consider when a director may be held jointly liable for infringing acts done by a company.

A closer look at Advance Magazine Publishers v Cornucopia Entertainment

Following the UK Supreme Court decision in Lifestyle Equities CV v Ahmed [2024] UKSC 17, in order for a director to be jointly liable, they must:

1. have had knowledge of the essential facts which make the act wrongful; and
2. procured the infringing act or joined in a common design with the company to infringe.

In Advance Magazine Publishers, the director – whilst not the sole director – was very much in charge of the company, and directed the infringing acts of the company.  Together with the fact that (i) the director was aware of the trade marks in question (and their reputation); and (ii) the company intended to take unfair advantage of that reputation, the director was found jointly liable for the infringements under s10(3) Trade Marks Act 1994.

In contrast, the director was not jointly liable for the infringements under s10(2) Trade Marks Act 1994 as, whilst the director must have known that there was a real risk that a complaint of infringement would be made, this was not sufficient to satisfy element (i) of the test above.  That element would have been satisfied if the director knew, or should have appreciated, that there was a likelihood of confusion.

Lessons for businesses and directors on trade mark infringement liability

For directors, the key takeaway is that if you actively drive your company’s infringing activities, you cannot assume that the corporate veil will protect you.  Knowledge of the essential facts, coupled with active participation, may expose you to personal liability.  As a result, this risk is enhanced for SMEs and owner-managed businesses, where directors are often closely involved in day-to-day decision-making.

Finally, it is worth noting that, following Lifestyle Equities, if an account of profits is to be given (and a director is jointly and severally liable with a company), the director is only liable for the profits they have made themselves (and so not liable for the profits made by the company).

If you have any queries relating to intellectual property infringement or exploitation, please contact a member of our intellectual property team on 0161 832 3434.