11 grudnia, 2012

Counterfeiting? No, Thanks

Trademarks are the most valuable commodities in the fashion industry. Fashion companies rely on their trademarks so consumers can identify a particular brand's products easily, which in turn has a bearing upon whether the consumer elects to purchase the product. Since copyright protection for fashion designs is limited, fashion companies must rely on their trademarks in order to help distinguish their products from those of their imitators.

Trademarks have the ability to stimulate consumer demand for products globally. This is particularly true given the advent of the Internet. Marks indicate that a particular product is associated with a certain reputation, and that, by buying another product with the same mark, consumers are purchasing item of the trademark owner's standard of quality. With the increased demand for certain trademarks, counterfeiters have realized the benefit of copying such IP. Counterfeit products can be created at a relatively low price and can be sold for great profits. 

What is trademark counterfeiting?

Trademark counterfeiting is the act of manufacturing or distributing a product or service bearing a mark that is identical to or substantially indistinguishable from a registered trademark. Simply put, trademark counterfeiting is theft of someone's IP. People who copy legitimate products not only reproduce the trademark owner's original patterns and designs, but they also decrease the value of the original products in the marketplace by making exclusive products seem as though they are available at mass-market prices. This practice harms the trademark owner, who seeks to maintain the exclusivity of the brand in the marketplace, while at the same time it allows counterfeiters to capitalize off the established goodwill and reputation of the trademark owner.

The history of counterfeiting and anti counterfeiting

People have attempted to associate brands with their products for hundreds of years. For as long as people have created objects of value, they have attempted to protect the marks that they have attached to those products. In 1946, Congress in the U.S. enacted legislation to protect trademarks that enabled trademark owners to enforce and protect their trademarks through civil actions. However, these early laws did little to protect trademark owners against counterfeiting. In 1983, brand owners again lobbied Congress for criminal penalties against trademark counterfeiting. By then, the problem of counterfeiting had escalated far beyond the trademark owners' control, and the issue was reaching crisis proportions. The legislature amended the 1946 statue in 1984 to criminalize trademark counterfeiting and included stiffer penalties for counterfeiters.

Source:  fashionscollective.com

"The crime of the XXI century"

Theft of IP, particularly trademark counterfeiting, is often referred to as "the crime of the xxi century". As technology advances, do does the ability of criminals and infringers to copy the trademarks of others, with the hopes of easy profits. Much of today's counterfeiting problem is linked to China, although Russia represents a major problem, and smaller issues are present in such places as Argentina, Belize, Brazil, Egypt, Indonesia, Israel, Lebanon, Paraguay, Turkey, Ukraine and Venezuela. In Latin America countries, the biggest problems come from domain name pirates and counterfeiters claiming to be distributors for U.S. companies. China's unprecedented economic growth has been accompanied, unfortunately, by rampant counterfeiting. Professor Peter Yu has written that:

"(...) the culprit behind the Chinese piracy problem is the Confucian beliefs ingrained in the Chinese culture, the country's socialist economic system, the leaders' skepticism toward Western institutions, the xenophobic and nationalist sentiments of the populace, the government's censorship and information control policy, and the significantly different Chinese legal culture and judicial system".

Professor Yu suggests that China's reluctance to embrace IP laws is due to the perception that these laws protect only foreigners and not citizens of China, and to the impression that such laws were adopted as the result of pressure to comport with Western IP laws, which creates further hostility and reluctance to abide by such laws.

On June 20, 2006, European and U.S. officials joined forces in the form of a joint task force to fight counterfeiting. The "EU-US Action Strategy for the Enforcement of IP Rights" provided a framework in which the E.U. and United Stated could identify and act on common projects with industry support. China and Russia were the main focus of the joint action plan.

Additionally, in October 2007, the U.S. Trade Representative announced the launch of the Anticounterfeiting Trade Agreement to establish common standards for anti counterfeiting enforcement among numerous countries.

Source: Wikipedia


"Fashion Law. A Guide for Designers, Fashion Executives, and Attorneys"