Counterfeit goods have become a pervasive problem with the potential to affect every part of our lives. From luxury items to everyday objects, fake products can be found everywhere. However, the production and distribution of these goods is illegal and can have serious consequences for everyone involved. This morning, Marks & Clerk took to the airwaves on BBC radio to explain the impact of this growing issue. In the interview, Kirsten Gilbert (Partner and Head of Brand Exploitation, Protection and TM Litigation UK) emphasises the importance of anti-counterfeiting efforts and the need for more effective measures to prevent these illicit activities. As we navigate a world where knock-offs are becoming increasingly prevalent, it's crucial to be aware of the ramifications of buying and selling counterfeit goods and we invite you to learn more about our anti-counterfeiting expertise here.
You can listen to Kirsten's interview with Sonia Watson here from 1 hr 40 mins; or read the transcript below.
Sonia Watson (SW): We are talking about fake items this morning because a man has been handed a £120 fine for selling counterfeit Louis Vuitton items at Pitsea Market. Let's have a chat to Kirsten Gilbert now. Kirsten is a solicitor with Marks & Clerk IP firm [which is particularly] active in the anti-counterfeiting sector. Kirsten, thanks for coming on. Good morning.
Kirsten Gilbert (KG): Good morning and thank you for having me.
SW: So we thought this is quite an interesting conversation because there are lots of different levels of copying. So how do you differentiate between the two? I'm thinking of some of the budget supermarkets, perhaps taking on cakes or other products that are very similar to other supermarkets. I mean, that's quite close to the mark, isn't it? How did they get away with that? But you can't do it necessarily with other things?
KG: Absolutely. Well, what we're talking about with the market trader is counterfeit goods. And when we're talking about a counterfeit good, we're talking about something that's a copy of another company's product. So that would be usually where they take the trademark exactly and copy it […] as well as other features of the product. So they'll use other parts of the product to actually try to imitate the genuine product. Often this is done either when people are trying to deceive purchasers into thinking that they are actually buying a genuine article, or people might know for other reasons e.g. price or quality, that it's not a genuine article, but it is it's meant to present to the world as a genuine article.
When you're talking about cakes - and I think you're referring, obviously to the very public dispute between Aldi and Marks and Spencer over Colin and Cuthbert the caterpillars - that's an example of lookalike products, we tend to call them, and they've been around forever and they happen in many different ways. But with Colin and Cuthbert, Marks and Spencer weren't saying “we're pretending that Cuthbert was a Marks and Spencer cake”, what they're saying there is that there are people using a similar design and name so that there could be confusion between members of the public […] that could think that there's some connection between [the products] and that link could give an unfair advantage.
So it can seem like quite a blurred line and, and at times, perhaps it is but I think the important thing to remember with counterfeit goods is that that trade is illegal. Those acts are criminal as you've seen from the market seller who's been given a fine. On one level, he's only been trading in a relatively small amount of goods but the actual value of the counterfeit trade in the world is substantial. I think the most recent figures assessing the value of counterfeit trade worldwide, was in in the region of us US$500 billion. So this is a huge, huge business and I think in the UK alone, you're looking at about £9 billion a year - which also translates to £4 billion in unpaid taxes.
The key point we're always trying to impress upon people is that there are consequences to what can seem like a fairly innocent. Most of [the money from counterfeit goods] is channelled into crime, gangs and terrorist organisations. That is the main difference if you like between sort of counterfeit products and other forms of what we would call trademark infringement.
SW: Oh, that's an excellent explainer there, which makes a lot of sense. It’s a lot more to do with the deception elements of it as you said - they're not they're not trying to say in Aldi “this in an M&S cake” but with the Louis Vuitton knockoff bags, they are trying to very much look like they Louis Vuitton when they are not.
Is it illegal to buy those bags? Because we hear that there are penalties - quite severe penalties as well - if you were caught selling them, but what about people who go and buy them?
KG: It's not [illegal] to buy [counterfeit goods]. Well not if you're the end consumer buying something from market stall and you didn't know. But if you're a wholesaler […] then yes, it is […] there is a differentiation there. So for members of the public, it's not so much that they are at risk of committing a criminal act by buying them, it's more about being aware of what the whole industry supports. If you accidentally buy something, obviously, that's a different issue. If you knowingly buy to counterfeit goods because you just want a bag that looks like Louis Vuitton bag and don't want to pay as much, then I think it's about understanding the wider context of the counterfeit business and the impact that it has.
There are things that people can look out for to make sure that they are buying genuine products. At the moment we are talking about the market trade but in this day and age a lot of the ‘market trade’ has moved online and a lot of the counterfeit activity is [taking place] in online marketplaces. But the kind of tips are always the same i.e. if you're buying it from a marketplace, either an actual marketplace or an online marketplace, it's always good to check that it's a reputable firm that you're buying it from - that reduces the chance that it's counterfeit. And you have to be honest about these things. If the price looks too good to be true, then it most probably it's not a genuine product; and things like the labelling and the description and how it's described, if there are if things don't look quite right with a lot of words like ‘similar to’, then that could set alarm bells off and you might want to check with that actually genuine product that you're buying.
SW: Kirsten, thank you very much for coming on. Really interesting chat with you. Kirsten Gilbert, a solicitor with Marks and Clerk IP firm - active in the anti-counterfeiting sector.