Combating Counterfeiting: Top Tips Every Brand Needs to Know
07-11-2024
By Faye McConnell Senior Associate/Lawyer at Browne Jacobson
From fake handbags to imitation haircare, the market for counterfeit goods is growing at the cost of brands and consumers worldwide. A 2023 study by the European Intellectual Property office found that the legitimate clothing industry loses almost 12 billion in European sales each year as a result of counterfeiting.
Whether the growth of e-commerce platforms or the rise of social media’s ‘dupe culture’ is to blame, if left unaddressed counterfeit goods can reduce your sales, jeopardise customer trust and satisfaction, tarnish your reputation and erode the value of your trade marks.
So what can brands do?
- A sensible trade mark portfolio is the starting point of every anti-counterfeiting strategy. They make take-down notices much easier, they can be used for customs watches, and in serious cases, they can be the basis of court action. Build a portfolio of registered marks covering the relevant brand elements in countries in which you sell, and where counterfeiting is particularly problematic such as China or Turkey. Trade marks are a priority based system, so apply before the counterfeiters do.
- With those trade marks, you can proactively police the online marketplace. Monitoring platforms can identify an unauthorised retailer or a suspicious product. Making a test purchase of those products helps reveal more about the source and authenticity of the goods. Social media platforms and online marketplaces such as eBay and Vinted have dedicated take down mechanisms, where brands can use their trade marks to remove infringing goods or adverts.
- In some countries such as China, copyright registration can also help protect against counterfeits.
- In many countries, customs authorities can seize and destroy counterfeits goods at the border. Registering your trade marks with the customs authorities is a relatively low cost and very effective way of stopping goods getting onto the market.
- Sometimes efforts can feel like “whack-a-mole”, and what you need is to stop the supply at the source. Invest in the legal action needed to assert your rights and gather further information and evidence including the names, addresses and contact details of suppliers, manufacturers and any wholesale customers.
- It can be hard to enforce against unknown actors, but being known in the market as a company that protects your brand helps deter counterfeiters who might opt for an easier target.
- Emerging technology is both a friend and a foe when it comes to counterfeiting. It can enable counterfeiters to create near-identical replicas, but a range of innovative authentication solutions can be deployed to fight back. This includes the use of holographic stickers, RFID tags, NFC chips, traceable serial numbers and QR codes. Tools like Amazon Transparency make it much easier to track product history and identify fake goods. Implementing technology to track serialised codes in your supply chain, means you can monitor products, pallets and containers. Tracking the movement of products from manufacturer to distributor can identify any irregularities and potential points of counterfeiting. Clients who use serial numbers and supply chain tracing make anti-counterfeiting programmes much easier.
- Managing a trusted and transparent supply chain can be the first line of defence to counterfeits. Brands should nurture close relationships with carefully selected suppliers, and conduct regular personal visits to check factories. Underpinning these relationships should be a robust contract containing appropriate restrictions and confidentiality provisions. Brands should ensure suppliers are stooped from using designs, patterns, processes or moulds other than as permitted by the brand.
- Operating a selective distribution network makes it easier to know whether goods are genuine or not, and can help you control the Amazon buy button.
- Counterfeit activity is often poly-criminal, with strong links to organised crime groups. Because of this, the police and trading standards may be able to help with investigations and seizing goods. In August 2023 a police operation in Camden seized £5 million of counterfeit goods and three individuals were arrested. Offenders can face up to 10 years imprisonment.
Cracking down on counterfeits requires brands to adopt a multifaceted approach, one which combines legal, technological and collaborative efforts across the supply chain.