Multi Pronged Effective Strategy For Anti Counterfeit Actions

A ‘counterfeit’ is generally an article which is intentionally made to look like an original article so that customers are deceived into buying the counterfeit for the original. As a rule, counterfeits are significantly less expensive than the original.

“Counterfeiting” is a disease that infects and erodes the brand value of a trade mark. The brand value is the perception of a brand in the minds of consumers. As a brand starts being counterfeited slowly but surely, the perception of the branded product starts to erode and when customers see a branded product in the market or in the possession of other customers they wonder whether it is genuine or counterfeit.

Two definite symptoms that a brand has been infected by counterfeiting is [a] the complaints the brand owners starts receiving about defective or substandard products and [b] reduction in sales in areas where counterfeiting is taking place.

In most jurisdictions all over the world the law has prescribed very effective remedies to fight the counterfeiting disease: The Trade Marks Act in various jurisdictions, for instance, dispenses a deterrent punishment for counterfeiters which may include a jail sentence and stringent fines apart from the confiscation and destruction of the counterfeiting articles. In Thailand for instance counterfeiting is punishable even by death. Punishments under the Copyright Act are also stringent with a prescribed punishment of a jail sentence and with an escalation series of fines. In addition to remedies under the criminal law the law of most countries also provide the brand owner remedies under the civil law by which suits for damages can be filed and damages obtained swiftly and efficiently. In some countries, for example in China, administrative remedies are available by which although jail terms are not prescribed, fast seizures of counterfeit products are available. Several of the laws relating to trans-border sales of goods also have built in remedies for inspecting and confiscating suspected counterfeit goods. In most jurisdictions the procedure for taking recourse to effective remedies has also been streamlined with adequate safeguards against misuse of the provisions, such as the requirement of taking approvals from the trade mark registry before initiating criminal proceedings. In spite of these remedies, however, today the counterfeiting disease is as rampant as ever and has infamously achieved epidemic status.

In this dissertation an attempt is made to analyze where we went wrong, to provide an effective strategy for controlling this disease and finally to provide methods to eradicate the disease by implementing these strategies.

To understand the ramifications of the counterfeiting disease, we legal advocates in dubai must first understand its aetiology: the causative factors and the conditions favorable for the growth and proliferation of the counterfeiting virus.

The single most important causative factor for counterfeiting is ‘greed’. Counterfeiting will flourish in an environment where the cost of the original product that is sought to be counterfeited is relatively high, the original product is in short supply and has a significant demand and the look and feel of the product is easily reproducible. Pharmaceutical counterfeiting falls typically in this class. Another environment in which counterfeiting thrives is where the original product has snob appeal. Luxury goods, such as designer accessories are species of this genus. Customers who cherish the original high value items for their snob appeal are willing to purchase the much lower priced counterfeits knowingly for flaunting purposes.

A demographic environment necessary for counterfeiting is an area where there is a relatively large population, with a thriving often unregulated market and a customer profile that is upwardly mobile. This makes countries like China, India, Indonesia, Pakistan, Bangla Desh and Thailand areas eminently suitable for the counterfeiting virus to thrive and proliferate. A recent trend is the proliferation of what are called free trade zones where there is minimum regulation of goods coming in and going out. These free trade zones such as in Dubai, Hong Kong and near the Panama Canal have become transit points for the transfer of counterfeit goods particularly counterfeit drugs, from countries where they are cheaply manufactured to countries where these goods have a profitable market value. Pharmaceutical goods are particularly well suited for transfers via the free trade zones.

Counterfeiting activity broadly falls into two categories: Locally made or domestic counterfeits and counterfeit products imported from abroad or foreign counterfeits. We advocate different strategies for tackling domestic and foreign counterfeits. Another slightly different category of counterfeits is refilling, which has been now refined to an art form. In refilling original packages are recycled to the consumer after being refilled with locally made product. Printer cartridges, Alcohol and perfume bottles are particularly susceptible