The proliferation of counterfeit goods poses a significant threat to designers and consumers. Consumers are often drawn in by the prospect of “cheap” designer goods. But what is the real cost?
Counterfeit items not only infringe on intellectual property rights but also deceive consumers, often leading to financial loss and potential safety hazards. Moreover, they damage the state’s ability to collect tax revenues.
Designers, whose creativity and innovation fuel the fashion and design industries, are often the primary victims of counterfeiting. However, in a technological age, counterfeiting can even take an online form, whereby counterfeit goods are being sold to consumers unbeknown to them. This means we need to be extra aware and vigilant.
Intellectual Property Rights – Trademarks and Copyrights
Trademarks are critical for designers as they protect brand names, logos, and other distinctive signs associated with their products. Under the Trade Marks Act 194 of 1993 (as amended), designers can register their trademarks with the Companies and Intellectual Property Commission (“CIPC”). Once registered, designers have the exclusive right to use their trademarks and can take legal action against any unauthorised use. Copyright protection, on the other hand, is automatic upon creation and does not require formal registration (in most instances). Copyright may apply to computer programs, literary works, broadcasts, cinematographic films, artistic expressions such as music, photographs, paintings, drawings, sculpting-related works, and architectural works, as well as published editions and sound recordings.
If infringement occurs, the designer or creator may exercise the following recourse:
- Interdicts: Designers can seek court orders to stop the sale and distribution of counterfeit goods.
- Claim Damages: Designers can claim damages for any financial loss suffered due to the counterfeit products.
- Obtain an Order for Seizure and Destruction: The court can order the seizure and destruction of counterfeit goods.
- Initiate Criminal Prosecution: In severe cases, designers can initiate criminal proceedings against counterfeiters, leading to fines or imprisonment.
The Consumer’s Rights
Consumers are often unsuspecting victims of counterfeit goods, which can range from clothing and accessories to electronics and pharmaceuticals. These counterfeit items can be substandard and unsafe, leading to financial loss and health risks.
The Consumer Protection Act 68 of 2008 (“CPA”) offers extensive protection for consumers against counterfeit goods. Key provisions include:
- Right to Safe and Good Quality Goods: Consumers have the right to receive safe and good-quality goods. Counterfeit goods often fail to meet these standards.
- Right to Fair Value, Good Quality, and Safety: Consumers can return counterfeit goods and demand a refund, replacement, or repair.
Consumers can lodge complaints with the Complaints to the National Consumer Commission (“NCC”), which can investigate and take action against suppliers of counterfeit goods. Alternatively, consumers can pursue legal action in small claims courts or higher courts for refunds and damages. On a societal level, consumers must take action when unknowingly being sold counterfeit goods and that the industry is consciously not supported.
SARS – Customs and Excise
The minefield of counterfeit goods entering South Africa through online stores makes this an increasing occurrence, often packaged as “cheaper” because the store is online and does not have all the operational costs. However, more than ever, it is crucial to know whether the online store is legitimate and whether the goods sold are being legally obtained and distributed. Designers and consumers can also benefit indirectly from the Customs and Excise Act 91 of 1964, which empowers customs officials to detain and seize counterfeit goods entering South Africa. On a societal level, designers and consumers must take action when counterfeit goods are being sold (imported).
Conclusion
Counterfeiting is a pervasive issue that undermines the rights of designers and jeopardises consumer safety. If you have fallen victim to counterfeiting, contact an expert at SchoemanLaw Inc. today for assistance.
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