Practice AreasAnti-Counterfeit Practice
What is a counterfeit product?
A counterfeit product is an illegal copy of the legitimate, original product. Such illegal products can be hard goods, software, music, pharmaceuticals, components or any other imaginable thing that has value to copy.
Where do counterfeit products come from?
At the moment, estimates place 75% of counterfeit goods coming from Greater China with the remaining 25% from Russia, Eastern Europe and other parts of Asia.
Why do people counterfeit products?
Because the legitimate product is successful and the counterfeiters think they can make money off of the legitimate owner’s (“Brand Owner”) trademark.
How do counterfeiters operate?
Counterfeiters operate in endlessly creative ways as with all criminal activity. The current counterfeit situation and the rise of China as the source stems from the maturation of the internet’s facilitation of business to business internet sales as well as the phenomenon of “just in time” manufacturing. One very popular way for counterfeiters to operate is to download Brand Owners’ trademarks and copyrighted materials from their websites and post advertisements on business to business websites such as Alibaba.com offering the now illegally branded products at a fraction of the price charged by the brand owner. Once they have collected enough orders off of this internet advertisement, then they organize manufacturing facilities to fill the illegal orders taken.
How does one know if they have purchased a counterfeit?
Sometimes it is very difficult to know whether a product is a counterfeit, but if you pay only a fraction of the price advertised by the reputable sales outlets, you should be suspicious. If you have any doubts, contact the Brand Owner to confirm one way or the other.
How can counterfeiters be stopped?
It is very difficult to stop counterfeiters and it is probably impossible to completely stop the counterfeiting of very popular brands. However, through a systematic, persistent approach, it is possible to address the business to business advertisements and to support the Customs and Border Protection agents so that they are better able to seize counterfeit products as they are imported into a country.
What does one need to do in order to have an effective anti-counterfeit strategy as a Brand Owner?
First and foremost, a Brand Owner needs a robust patent, trademark and copyright portfolio both in the United States and abroad in order to address this growing problem. Without these forms of intellectual property (“IP”), there is nothing that can be done. It is particularly necessary to file for IP protection in China so that all of the websites that are hosted there, both business to business and business to consumer, will accept the form of IP owned and enforce it against those who would otherwise advertise illegally on their website. There are many other strategies that can, and often should, be implemented to fight counterfeits which we are happy to discuss with any Brand Owner facing a counterfeit problem.
What are the consequences of getting caught counterfeiting?
Counterfeiting is both a civil and criminal offense. One can be convicted of this felony offense and go to jail, pay criminal penalties as well as civil damages to Brand Owners for infringing their copyrights, trademarks and patents.