“Same same…but different”: Trademarks, brands, and the fight against counterfeit goods that rages on

Counterfeit goods are goods that fraudulently imitate and use another’s brand name to lead consumers into believing that they are buying the genuine product (although some consumers may knowingly buy fake goods). Counterfeiting has become a lucrative underground business and is now a global concern. This year, the Organisation for Economic Co-operation and Development reported that the global value of all counterfeit goods increased to $1.77 trillion, with counterfeit products making up to 7% of world trade. This has led to the loss of approximately 2.5 million jobs worldwide.

Apparently, South Africa is regarded as one of the world’s fastest growing counterfeit industries. In 2011, the value of the South African counterfeit industry was estimated at approximately R362 billion.  To try to put a plug in the leaking ship, the Counterfeit Goods Act was introduced in 1997to protect trademarks, copyrights and intellectual property rights, and to restrict the sale of counterfeit goods. The Act prohibits dealing, selling, manufacturing, producing and exporting counterfeit goods. Persons found dealing in counterfeit goods are guilty of an offence and may be fined up to R5000 per article or face up to three years imprisonment or both, if they are a first time offender. Those guilty of a second conviction may be charged up to R10 000 per article or a maximum of five years imprisonment or both –not an insubstantial punishment.

WHAT YOU CAN DO:  If you, a brand owner, suspect that someone is dealing in counterfeit goods, you are obliged to lay a complaint with the Commissioner for Customs or Excise or a police official.  These inspectors may take steps  to terminate the unlawful act of dealing in those counterfeit goods, including seizing and detaining and destroying the counterfeit goods.

Brand owners must ensure that all their trademarks, like logos and brand names, are registered so that their intellectual property is properly secured. This is best done before the products are exposed to the public. Even the packaging design may be registered and protected.

Although it is up to brand owners to protect their intellectual property, consumers have a duty to buy responsibly- if the price is too good to be true, it’s probably fake!