What to do when your product is copied
13 Jun 2019
South Africa has seen a dramatic rise in entrepreneurial activity with many seeking to launch new products into the marketplace. For some, this means spending most of their time and budget on creating products they believe will sell well and then marketing these in the hope of raising substantial awareness. However, with the success of a product comes the risk of someone else copying the idea and taking advantage of the already established route to market thereby affecting the original product’s sales and brand.
If this sounds familiar to you, rest assured that you are not alone. These opportunists, known as counterfeiters, are active everywhere and the damage they can potentially do is felt by many who are either not aware of what steps they can take to protect their product or do not budget to do so. Since counterfeiters sell copied products at much lower prices, it can have devastating effects for the creator or importer of the original product, including loss of goodwill and reputation in the genuine item due to sub-standard goods which then negatively affects sales, and may even render a complete loss if the owner does not take immediate steps to protect their brand
How the law can help
The current law has various remedies available against these counterfeiters. The two avenues that need to be blocked for counterfeiters are imports of the counterfeit product (as these are usually manufactured in other countries), and to remove these goods from the market in order that the genuine product retains its established place.
In order to block the import channel, there is an option to register your brand (trade mark or copyright) with the South African Customs, which empowers them to conduct searches of imports and detain suspected counterfeit goods before they enter the country.
To remove the goods from the marketplace, an option is available to apply for a search and seizure warrant through the various Police offices in order to conduct a raid and remove these counterfeit goods from the market.
Both these import and market strategies will then lead to criminal and civil proceedings against the importer or seller of the counterfeit goods, which is very effective in deterring the counterfeiters from damaging the business of the legitimate brand owner.
Another advantage of these strategies is the action taken is extremely swift when compared to other forms of legal action which can take years, and a further advantage is having the infringing goods at hand before legal proceedings start – which limits the damage the counterfeiter can cause during the time it takes for the criminal and civil actions against them.
It must also be noted that counterfeit goods are not limited to luxury items anymore. Anything that exists in material form can be counterfeited, particularly products that potentially sell well. This even includes counterfeit food, water and other consumables.
It makes business sense therefore that anyone who creates or legitimately distributes a product they believe will be well received in the marketplace, takes the appropriate steps to protect this in the ways mentioned above but also considers consulting an anti-counterfeit attorney too as having an effective anti-counterfeiting strategy in place will not only deter fake imports and sales but also give the genuine product the best possible chance of success.
- A simple understanding of counterfeit law in South Africa
- Africa – An ideal market for brand holders and counterfeiters
- How to protect FMCG from counterfeiters – Luxury brands are not the only targets of counterfeiters