It was recently published in The Straits Times how the local Singaporean fashion brand AUPEN sought to enforce against counterfeits of its renowned bag products, located in a factory in Guangdong province, China. The AUPEN brand is known for its minimalist, sculptural designs, especially the Nirvana bag which gained mainstream attention when singer-songwriter Taylor Swift was photographed carrying it. The Nirvana bag has become a signature style for AUPEN and many other celebrities have been spotted carrying their bags, further solidifying the brand's popularity.
This article highlights the important issues in battling against counterfeits and in protecting IP rights.
Securing Protection to IP Rights
AUPEN revealed in the article that Taylor Swift’s reclaiming of copyright ownership to her music by re-recording her first six studio albums highlighted the importance of owning your IP rights. As a result, AUPEN strived to secure registration of its IP rights, including trade mark and design rights. Trade marks and designs are generally the more common forms of IP protection when it comes to fashion products and accessories, as they help safeguard the brand identity and visual appearance of the products.
A trade mark refers to any signs which may include any names, logos, brands, shapes, colours or a combination thereof that you use in the course of your business to distinguish your goods and/or services from those of other traders. Trade mark protection is important so that other third parties are prevented from using signs identical or similar to yours, such that your business, goodwill and reputation will be affected.
On the other hand, a registered design, or a design patent as it is known in the United States, refers to legal protection granted for the visual appearance of the whole or part of a product, rather than its functional aspects. The design can encompass features of shape, configuration, colours, pattern, or ornament. The protection allows you, being the owner of the registered design, to prevent others from making or selling products with the same or similar design.
Below are some considerations when it comes to the filing of trade marks and designs:
Consideration | Trade Marks | Designs |
What to file? | Brand names (including logos) and key product names can be protected by registered trade marks. For instance, AUPEN has registered its “AUPEN” brand in Singapore (under trade mark number 40202322086U) and other countries.
| Visual appearances of products can be protected by registered designs, especially for designs that are unique and can provide your business with commercial advantages. AUPEN has made use of registered designs to obtain quick legal protection of the visual appearance of their products, particularly their bags and charms. For example, Singapore registered design numbers 30202401029U and 30202401091S protect the designs of the Nirvana bag and the accompanying charm.
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Where to file? | As both trade mark and registered design protection are territorial-based, you should identify which countries/ markets are important to your business before filing. The priority will be where your products are manufactured, offered, sold, marketed and likely to be counterfeited. | |
When to file? | Ideally, you should file a trade mark before you launch your product bearing the trade mark as it may take some time for the trade mark to be registered, depending on the country, and protection is only granted upon registration of the trade mark. This is especially so in some countries, where counterfeiting and trade mark squatting are prevalent. Some may even file for products which are not ready for launch, but are part of prospective plans. | A design must be new before it can be registered. Thus, it is important to file your design application before you launch your product. While some countries such as Singapore offer grace periods in which you can disclose your design, e.g. in a product launch, and still obtain registered design protection, this is not available in every country, and you may lose the ability to protect your design in many countries. |
How to file? | The intended specification(s) of goods and/or services for your trade mark application should be reviewed or vetted prior to filing, to ensure compliance with local examination practice/ adopted classification standards. In Singapore, it is possible to file series mark applications, meaning a single application to cover up to 6 marks. This is provided that the marks resemble each other as to their material particulars and differ only as to matters of a non‑distinctive character not substantially affecting the identity of the trade marks. | Design drawings or photos should be suitable and contain enough views to completely disclose the appearance of the design. Registered design protection for part of a product may be available in some countries, such as in Singapore. This partial protection can be achieved by using broken lines in the drawings to indicate which part of the product is to be disclaimed from protection, while solid lines indicate the part of the product to be protected. Some countries also exclude certain designs from registration. For example in Singapore, a design cannot be registered if it includes features that are chosen by the designer solely for performing a technical function of the product. While designs are often registered for aesthetically attractive products, there is no such requirement for a design registration. Additionally, in most countries, registered design applications are not substantively examined for novelty before registration, allowing for quick registration of designs. |
It is advisable to seek professional advice and proper assessment of your intended trade marks and designs, to ensure their registrability and availability for use in the countries/ markets of interest. This is also to ensure that the IPs filed sufficiently protect your rights in relation to the products and services offered. Clearance/ availability searches for your intended trade marks and designs should be conducted ahead of filing and use, so that you are not at risk of infringing third party rights.
Monitoring for Counterfeits/ Infringing Products
According to the publication, an AUPEN staff member stumbled upon counterfeit handbags being sold on the e-commerce platform Alibaba.
IP right owners are encouraged to practise regular auditing and monitoring for counterfeits/ products infringing of their IP rights, and develop a proper strategy for doing so. In the context of trade marks, counterfeits may be copycats and are often inferior products bearing a sign identical or nearly resembling your trade mark. Having proper awareness of what channels to monitor (e.g., e-commerce platforms, social media, digital platforms, physical retail stores, etc.) and which countries/ markets to target is key. If budget is a concern, it is possible to prioritize certain platforms and channels which are hotspots for counterfeits/ infringing products.
More often than not, even with information on unauthorized or suspicious product listings on online platforms, IP right owners are unable to determine accurately if the product is indeed authentic or a counterfeit/ infringing product. If the seller is offering the product in large quantities and at significantly or unusually lower prices, and there are discrepancies in product descriptions/ images, it is generally worth investigating further on the seller and listings. You may consider conducting test purchases, as this allows you to examine the physical product in detail, and also obtain the seller’s details at the same time. Any investigation to be done on the product and seller should be as discreet as possible.
Working with Law Enforcement Bodies
The publication states that upon discovering the counterfeit AUPEN handbags, AUPEN conducted investigation and worked with Chinese authorities to successfully raid and seize the counterfeits from the factory. Further investigations to trace the broader counterfeit network are ongoing at present.
In situations where there is clear information on the source of the counterfeits and large quantities of such counterfeits in stock, IP right owners can work with law enforcement bodies such as the police and local authorities (depending on the country involved) to raid physical locations and remove the counterfeits from these locations. In Singapore, it is possible to collaborate with Singapore Police Force’s Intellectual Property Rights Branch for the raid and seizure of counterfeits in the context of trade marks.
In certain cases where there are cross-border transactions of counterfeits/ infringing products (i.e., counterfeits/ infringing products being imported into or exported out of a country), it is also possible to work with the Customs authorities to seize such goods. This is more effective in countries which have IP recordal systems, meaning you can register certain IP rights with the Customs authorities, and the Customs authorities will have more awareness and knowledge in monitoring any incoming or outgoing shipments for counterfeits/ infringing products. Although Singapore has not implemented an IP recordal system, it is still possible to work with Singapore Customs on the seizure of counterfeits/ infringing products in the context of trade marks and registered designs. Singapore Customs may either seize on their own accord (applicable to trade marks) or with sufficient notice and information provided to them (applicable to both trade marks and registered designs).
It is imperative to first collate sufficient investigation evidence and documentation for submission to the law enforcement bodies. You may expect different countries to have different legal processes and thus, different requirements imposed. Generally, having IP registration in the relevant country and proper documentation detailing the same, will make the enforcement process a smoother one.
Raising Consumer Awareness
In AUPEN’s case, AUPEN makes it clear that they sell their products only on their website. Consumer awareness is also raised, where purchasers of AUPEN’s handbags from third-party resellers can verify the handbags directly with AUPEN, and there is a unique order number for every purchase from AUPEN for verification purposes.
To establish more trust within purchasers, IP right owners can educate them on how to verify product authenticity. Technology is also increasingly being leveraged these days, where features such as RFID tags, holograms and QR codes are attached to products so that purchasers can trace the origin of their products easily.
IP right owners who are concerned with divulging too much information on product authenticity such that the information may be relied upon by counterfeiters/ infringers to improve counterfeits/ infringing products, may consider providing a platform for purchasers to verify product authenticity with them directly, as is the case with AUPEN.
Conclusion
Navigating the registration, protection and enforcement process of your IP rights may be complex and time-consuming at times. However, this remains vital as the lack of IP protection may place your business at risk. Counterfeits/ infringing products which are of inferior quality or pose hazards will lead to an eventual lack of purchasers’ trust in your brand, and affect your business sales and profitability as a whole.
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