Selling counterfeit goods

[Annoying Twit]

Is it legal to sell counterfeit goods if you explicitly say that they are counterfeit?

 

[Optegris]

Do you want a sensible answer or a stupid one?

 

[Annoying Twit]

Do you want a sensible answer or a stupid one?

I actually want a sensible one. Someone on another forum is arguing one side of the question, and I believe the other.

 

[Optegris]

OK then fake is fake, counterfeit is counterfeit, no matter how you look at it.

Joe Public probably won't care either way even if you are up front about it but I'm sure trading standards and the brand owners wouldn't be so understanding

 

[Annoying Twit]

Is there online (preferably) information on this. I've looked around, but all the information I've found (e.g. consumer direct) only directly addresses the case where the goods are sold in a misleading fashion.

The Consumer Direct law itself mentions "passing off", which leads to a definition of "misrepresentation". The argument I speak of concerns whether it's the human retailer that must be guilty of misrepresentation by saying it's genuine goods, or whether the (e.g.) guitar itself is misrepresenting itself as the genuine article.

I'm trying to write this as objectively as I can, as I'd like to know the truth, not curry support for my own position.

I can't post a link yet, but item230222254d on ebay at the moment is a good example.

 

[cmcp]

http://www.birmingham.gov.uk/GenerateContent?CONTENT_ITEM_ID=6613&CONTENT_ITEM_TYPE=0&MENU_ID=1522

 

[Annoying Twit]

Thanks. This definitely says that it's illegal to possess counterfeit items, with no mention of whether the goods were bought knowing of their illegal status, intent to sell, etc.

I found another article that discusses the problem from a global perspective, and discusses different types of buyers of these goods. It mentions enforcement against consumers who knowingly buy counterfeit goods, so there must be laws against at least that side of things. Can't post the link yet, but if you search on "targeting buyers of counterfeit goods" with the quotes, it's the first link on google uk.

 

[cmcp]

You might want to look up "fraud", HM Revenue and Customs, and the Organised Crime unit.

You can not, under any circumstances sell these goods.

 

[tony84]

think of it from the point of view of the manufacturer.

Trademark infringements copyright issues etc etc.

It is definately illegal to sell fakes even if you inform people. If your company is based in somewhere like Turkey etc then i dont think it is high on their list of priorities and so you may well get away with it if your posting the goods from outside the UK/eu

 

[Annoying Twit]

You might want to look up "fraud", HM Revenue and Customs, and the Organised Crime unit.

You can not, under any circumstances sell these goods.

Agreed. That's been cleared up nicely in this thread. But what's not so clear is whether it's illegal to possess counterfeit goods. For personal use, not sale. In the US, all the legal descriptions I could find said it was illegal to possess counterfeit goods with the intention to sell. The references for the UK just talk about possession, or the application of trademarks to goods, without mentioning an intention to sell. But this might be outside what people on this forum are concerned about, as this is a business forum. I can't find anything conclusive whether it is illegal to buy counterfeit goods, but I guess it would be.

 

[cmcp]

Agreed, but that's a different conversation I've no interest in.

 

[Mister B]

I'm a brand owner and for sure, if somebody tried to rip my products off then there would be big trouble.

As for the legality of owning counterfeit goods, even if it were illegal, (which I don't think it is,) I would have thought it nigh on impossible to prove and as such, non enforceable.

Mister B

 

[logicfusion]

Lets put it this way.

When I was a Police Officer I did a job with the Local Trading Standards officers at the local market.

They went around doing test purchases (accompanied by 'experts' from several major name clothing reatailers who confirmed whether an item was couterfeit).

Based on several test purchases a number of traders were arrested by Police and taken into custody. I'm not saying all these people were selling the stuff intentionally knowing it was not legit, but they all got nicked regardless and questioned in interview.

I would not risk it. You need to make sure what you are selling is genuine.

The brand owners are very keen to see such matters investigated.

 

[Annoying Twit]

Just to be clear here, I have no intention of selling counterfeit goods. I am arguing against those (on another forum) who claim that there's no problem (morally or legally) if someone sells counterfeit goods while telling people that they're counterfeit.

 

[logicfusion]

Hi mate

I wasn't implying that you were

I just wanted to share a previous experience with people. TS do take action and the Police are very willing to back them up.

Perhaps the other forum need to farmiliraise themselves with the Criminal Law regarding such activities.

I'm sure its no fun getting arrested and your front door 'put in' as your home is searched for eveidence of the alleged offence.

Its something anyone involved with retail should be careful of.

I don't want to scare anyone, but please everyone, don't take a blaise attitude to such matters.

Just to be clear here, I have no intention of selling counterfeit goods. I am arguing against those (on another forum) who claim that there's no problem (morally or legally) if someone sells counterfeit goods while telling people that they're counterfeit.

 

[Annoying Twit]

There's a case in a guitar forum right now where a "Cash Converters" in Australia has some fake guitars in. Someone reported it to the police. Police utterly disinterested and said that it was legal to sell fake goods.

It's not, BTW, legal to seel fake goods in Australia. I checked.

(Edit: I'll be careful to try to stay on business topics. I know this is not a guitar forum).

 

[Geoff T]

Just to be clear here, I have no intention of selling counterfeit goods. I am arguing against those (on another forum) who claim that there's no problem (morally or legally) if someone sells counterfeit goods while telling people that they're counterfeit.

my advice - ditch the other forum...

 

[maidofkent]

To the original question - isn't counterfeiting to do with intent to deceive and defraud?

If that's the case, then wouldn't it mean that by saying goods are counterfeit means they aren't?

Also, what is the difference between counterfeit goods, and copies?

MoK

 

[Williams lester]

To the original question - isn't counterfeiting to do with intent to deceive and defraud?

If that's the case, then wouldn't it mean that by saying goods are counterfeit means they aren't?

Also, what is the difference between counterfeit goods, and copies?

MoK

Not really, as by selling them you would be defrauding the maker/owner of the original goods.

 

[obscure]

There are two elements to this. The first is the deception and the second is the use of the original manufacturers trademark/design without their permission. While declaring something to be fake might protect against the first issue it won't protect against the second. Selling counterfeit goods is trademark infringement and possibly also passing off or a breach of design rights.

Stating that the item is fake actually makes this a more serious offence of "wilful infringement" because you are admitting that you know that you are using someone else's Trademark. It removes any mitigation that you sold the item without knowing and therefore removes any possible defence.

 

[maidofkent]

Obscure,

Thank you - you've answered for me the question of the difference between counterfeit and copies.

I was struggling with the issue of copying, which I know is a legitimate practice, but doesn't involve the use of a trademark.

MoK

 

[obscure]

Thank you - you've answered for me the question of the difference between counterfeit and copies.

I was struggling with the issue of copying, which I know is a legitimate practice, but doesn't involve the use of a trademark.

Then I think you misunderstood my post. There is no difference between counterfeit and copies (if by copy you mean an exact copy of an existing product). Just two different words to describe the same thing.

Making an exact copy would be an infringement of the real companies design rights and I am pretty sure would result in legal action for passing off. Use of the actual trademark on the item would just be an additional offence of trademark infringement. There is no way to rip off someone else's product that does not expose you to a potential law suit.

 

[maidofkent]

Hi obscure,

I was thinking specifically about the fashion industry, where, for instance, after Oscar night, high street stores produce copies of designer dresses.

That's been a normal practice for many years. So, you've confused me again.

MoK

 

[obscure]

Creating a dress that is inspired by the styles seen on the catwalk is common practice. Making exact copies (unless you have licensed the design from the creator) or copies that are very close may have been common in the past but companies have got wise to this and doing it these days certainly can lead to court.

http://www.out-law.com/page-5577

http://www.retail-week.com/primark-in-high-court-dispute-over-piracy-claims/1044133.article