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Think like a thief!
Counterfeiting is a crime. Different jurisdictions have different statutes with different requirements, but every civilised jurisdiction in the world recognises that it is illegal for a third party to replicate or imitate a trademark in order to confuse consumers into thinking that his goods come from the original maker.
Those who use such brands are stealing. Counterfeiters are thieves. They are criminals. They behave like criminals. That means you must approach protection as if you are defending against a criminal.
The first and most important step that a trademark owner must now take to stop this crime is to think like a criminal. This recognition is crucial and must be acted on accordingly.
If an owner wants to prevent counterfeiting, he must anticipate where counterfeiters will act. He must anticipate not only where the crime will be committed but also, more importantly, how the crime will be committed.
Right now in China there is a growing business involving related subgroups. Subgroups are different categories under which owners can register their trademarks. Individuals who find a widely used mark can register the mark in the relevant subgroup before the owner of the trademark himself registers it. The individual can then offer to sell his rights in the mark to the original owner. Owners taking the time to register in the relevant subgroup at the outset could deter this practice.
It is important for an owner to research the laws in any jurisdiction where he registers his trademark to ensure that he follows the proper procedures. Only through doing so can the authenticity and originality of the creation be protected.
Counterfeiting is a constantly growing global problem. The latest statistics show that it accounts for over 10% of the world trade. It is a significant problem in the luxury goods trade and is increasingly moving into car parts, aircraft parts, food and drink and pharmaceuticals. It poses a serious threat to national economies and threatens the health and safety of individuals, jobs, trade and innovation.
As counterfeiting increases globally, more initiatives are being taken by governments and brand owners in an effort to combat the trend. At the same time, counterfeiters are developing increasingly sophisticated operations. The internet also increases the problem as it raises complex legal issues and challenges traditional methods of control. The ambit of internet is gargantuan and it is widespread so it is largely this medium that counterfeiters of trademarks take advantage of.
The sale of counterfeit luxury fashion brands in China over the last decade is a prime example of the difficulties in providing effective enforcement of intellectual property rights. The lack of understanding by the public poses a huge problem in tackling counterfeiting and piracy. Consumers are often not aware of the risks associated with buying counterfeit products, regard purchases of fake products as form of entertainment and do not read the warning signs that indicate goods are fake. So "buyer be aware" is a principle that must be followed by one and all.
Dr. Khalid Al Mehairi is a Managing Partner & Attorney at Law for Emirates Advocates in Dubai.
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