Journal Article

Who's deceiving whom? The curious case of the ‘counterfeitee’

Matthew J. Elsmore

in Journal of Intellectual Property Law & Practice

Volume 5, issue 10, pages 736-745
Published in print October 2010 | ISSN: 1747-1532
Published online August 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq102
Who's deceiving whom? The curious case of the ‘counterfeitee’

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Legal context

This article seeks to investigate whether consumers ‘getting away with it’? As far as anti-counterfeit rules are concerned, whether the consumer purchases the real trade mark or the fake trade mark on a consumer-facing item, there is no meaningful distinction.

Key points

Consumers consume genuine and counterfeit goods; more and more of the latter it seems. That certain consumers are somehow persuaded to buy fake trademarked goods is a hotly debated and politicized topic as global trade and IP meet. All the subsequent regulatory emphasis and political focus is on the counterfeiter; a target that remains far from grasp. Civil and criminal trade mark liability for the counterfeiter and the obligations for state actors are apparently not deterring professional infringers.

Practical significance

Is a reconfiguration needed? It is clear that the overwhelming majority of counterfeits do not mislead or even confuse consumers as to trade mark authenticity. Is this why the consumer, an important actor in IP law, and especially trade mark law, disappears altogether from the anti-counterfeit radar? Yet trade mark regimes are partly about aligning legal standards with the consumer's perceived level of attentiveness; there appears to be a puzzle here. By first asking whether consumer liability should be addressed, this article airs views for and against a legal status as ‘counterfeitee’. The article seeks open up this aspect of the discussion surrounding counterfeiting with enough gusto for all of us (as IP specialists and consumers) to reconsider our role in the global trade of counterfeit goods.

Journal Article.  8306 words. 

Subjects: Arbitration ; Intellectual Property Law

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