Counterfeiting used to be about fake money. Today, almost anything with value is a target. Essentially, if there is money to be made from a product, there will likely be a counterfeiter running off copies. Copying is not the problem. It has to be easy so that businesses can mass produce but it needs to be controlled as the ease of mass manufacture also benefits counterfeiters. The stifling of innovation and damage to reputation caused by copying without authorisation adversely impacts businesses and the economy. This effect brings together a number of parties with the shared objective of combatting counterfeits. Every business trading in goods should understand how to make the most of the resources available to deter counterfeiters.

Tackling counterfeiting
No single method provides effective resistance on its own. It is vital to have in place a long term, multi-faceted strategy.

Budget
Preserving the IP that gives a business its competitive advantage costs money. The budget required depends on the value of the IP to the business, the level of threat from counterfeiting and the cost of proportionate action (reactive and proactive). Though difficult to quantify initially, maintaining a log of anti-counterfeiting operations can provide guidance on future budget allowance.

Register
Always register IP where possible, both with the IP offices of the regions in which the goods are to be sold and also where they are manufactured. Many forms of registered protection are very cost-effective, notably UK design registration official fees (£150 for 50 designs). Registration should be the default position, especially as many online marketplaces require a registration number in takedown requests. The price for registration is small compared to the cost of being unable to prevent fakes. Registration with customs authorities is a practical measure that enables counterfeits to be seized at the point of entry, preventing them from circulation. Advising customs on what to look out for, and providing samples of genuine goods, enhances the efficacy of this measure.

Monitor
The UK Intellectual Property Office’s IP Crime and Enforcement Report 2016/17 identified the use of auction sites and online sales platforms (especially Facebook and Instagram) as a key trend. The top spot for investigation by enforcement authorities remains ordinary shops but the gap is closing. Monitor online marketplaces and any other known sources regularly so that action can be taken quickly.

Investigate
Gather intelligence from all available sources, including distributors and consumers. Use investigation agencies to obtain samples of suspicious items and to identify their source. Make a note of repeat offenders for targeted action.

Act
Infringement claims can be brought in the Intellectual Property Enterprise Court (IPEC), and takedown requests filed with online marketplaces but there are trade organisations, anti-counterfeiting groups and the Trading Standards Office that can also assist, with great success. Sometimes, the conversion of a counterfeiter to a licensee could be considered.

Prevent
Make it difficult for goods to be copied, educate consumers and be persistent in pursuing infringers:

• Mark the goods/packaging with individual codes;
• Incorporate security features requiring a device to verify identity; and
• Make regular changes to the design.

While these options can make it easier to identify fakes, they may be most appropriate for higher value goods or those where fakes can pose a serious risk to health. So you should:

• Educate consumers; and
• Provide easy channels for reporting counterfeits.

Some consumers see the issue of fakes as the brand owners’ problem (and others as the consumers’ gain). It is important to educate and motivate consumers to purchase only the genuine article. Try to:

• Plug leaks in the manufacturing process.

A clear no-tolerance approach and regular audits should be established. Some factories authorised by the IP owner to copy products are also the source of fakes, the only difference being that they were unauthorised overruns. Subsequently:

• Be persistent;
• Be consistent; and
• Raise awareness of a no-tolerance approach with active PR.

Summary
Make it so no one thinks they will get away with it. Have a clear system in place to give effect to the anti-counterfeiting strategy. Train staff and distributors on how to report and handle counterfeit notifications. IP owners do not have to accept counterfeiting as a consequence of success. Being active in seeking out offending articles and taking fierce action when infringement is found should be rewarded with a remedy in the short term, and a deterrent effect in the longer term.