Locking down the counterfeiters during a pandemic

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For most of us the current pandemic has created a world which just a few months ago we would not easily recognise. It has made all of us make huge compromises on the way we live, interact and work. But as with any crisis, there will be those who want to illegally take advantage of the situation. Counterfeiters fall in this category. Whilst most cosmetics and personal care businesses are assessing how to protect staff and continue operating, donating their products to charities, or directly easing the crisis through redeploying their infrastructure and expertise to produce hand sanitisers, counterfeiters are taking the opportunity to flood the market with substandard products.

This could be seen as an opportune moment for counterfeit products to go unnoticed as sales switch from physical to online purchases. For those items which are in short supply, customers who may in normal circumstances confidently purchase items from a handful of websites that also have a physical presence, are searching further afield. Combine this demand along with an increase in the use of ‘pamper’ products as we recognise the need for self-care during these stressful times, unscrupulous operators can be quick to respond.  Practically, the law enforcement agencies are understandably diverting time and attention elsewhere and goods crossing borders may not be monitored as they normally are.

When companies are fighting for survival, IP is perhaps low down on the priority list but it shouldn’t be. For many it is one of its strongest assets. The intangible nature of IP means it transcends physical boundaries and lockdowns, allowing it to remain ever-visible in the virtual world.

So companies should take this unexpected pause in normal business to ensure that the IP protection is as robust as possible. Check core brands are registered as trade marks for the right representation of the marks in relation to the right scope of products and services. Check that the geographic scope of protection mirrors the countries which generate the best revenue streams. Take the opportunity for internal housekeeping; consolidate past marketing campaigns, design briefs and product catalogues. Being able to produce a back catalogue of how, where, and when a brand has been used is powerful evidence, both in terms of defending your ability to use the brand and stopping others.

As crazy as it may sound, this ‘pause’ in normal business has led to some cosmetic companies looking to update their brand identity so that when this immediate crisis is over, they can proceed with a new look brand. Here the usual rules apply: a brand needs to have a strong identity which will enable it to stand out from the crowd.  Any redesign should identify what the key aspects of the branding are – it may not just be the brand name, it could be a colour combination or distinctive packaging.  Consideration should be given to the ease with which the brand name, the product or the product packaging can be replicated; needless to say, the more intricate the packaging or logo the harder it is for counterfeiters to replicate.

Most importantly don’t ease up on enforcement activities; this will only exacerbate the number of counterfeiters targeting your brand. Work with your IP advisor to create a streamlined and cost effective enforcement programme. Counterfeiters want an easy life, if copying your brand is causing them a headache; they are likely to move on to an easier target.

It’s clearly a distressing problem for businesses and the consumers who unwittingly become victims of the counterfeiters. If your business is being targeted, you should get in touch with your IP advisor as quickly as possible. They will then advise you on the best course of action to stop the attack on your business and brand reputation. And moving forward, your attorney will help put measures in place to guard against any future attacks.

At Barker Brettell, there is a dedicated team of attorneys specialising in the IP needs of the cosmetics and personal care sector. If you would like to know more about the matters discussed in this article, or any other IP issue, please get in contact with the author or here.