counterforce - Counterfeiting

Counterfeiting Perspectives
Counterfeiting - The Global Challenge
for Trademark Enforcement
By Richard Heath, VP Legal - Global Anti-Counterfeiting Counsel,
Legal Strategy Group, Unilever Plc
Counterfeiting has grown substantially over the years to
become the greatest threat to established brands.
Whereas counterfeiting was viewed in the late 1980s
as mainly affecting luxury brands that had gained
international fame, it is now a global problem touching
all industry sectors. As a result, anything that can be
copied will be.
Counterfeiting is a serious crime and international,
regional and national governments need to recognize
this and impose appropriate sanctions on counterfeiters.
Some countries have recognized counterfeiting as a
serious risk for society and acted accordingly but more need to do so.
While criminalization of counterfeiting is probably one of the best ways to deter
counterfeiting, strong customs regimes associated with efficient and quick access to
remedies have proven successful at drawing some concrete results for brand owners.
For example, the establishment of fines, statutory damages and sanctions against
counterfeiters that are commensurate to the harms they cause, would make counterfeiting
a less lucrative and attractive business. In addition, the non-imposition by
customs of a bond requirement as a condition to processing counterfeiting cases,
and improved intelligence sharing would make it easier for brand owners to act against
counterfeiters.
In China the so-called four City Landlord Liability initiative is having some impact
and indeed in Nigeria, where the tort has recently been introduced, NAFDAC (the
Regulatory body for food, drug and healthcare products in that country) claims a 60%
reduction in the level of pharmaceutical counterfeits since its introduction, specifically
targeting pharmaceutical manufacturing facilities. This is an excellent achievement in
a country that is often perceived as one of the worst in Africa for counterfeits.
In addition, secure destruction of counterfeit manufacturing facilities would help,
as very often in China such plants are simply mothballed and re-commissioned as
soon as offenders are released from jail, making re-offence likely. If their significant
investment in machinery had to be repeated this would be a considerable deterrent
against re-offence. This should become part of the asset recovery process.
A number of major partnerships and technical assistance initiatives to help China
and other countries improve their enforcement framework have been undertaken.
Examples include the EU-China and the US-China bilateral co-operation initiatives,
and these are having some impact. Additionally, the China Customs Authority is now
actively engaged in the fight against IP Crime, particularly with respect to exports from
major shipping ports and hubs, and the positive impact of this too is now being felt
reflected in increasing seizures before the consignments leave the ports.
Elsewhere the phenomenon of transshipment, especially through Free Trade Zones
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