‘Knock-offs’ can spell danger
‘There are all sorts of health issues connected to buying goods that haven’t been approved’
“DEALING IN COUNTERFEIT goods – comprising 5% to 7% of total global trade – makes fake goods real business.” So says Mohamed Khader, an attorney at Spoor & Fisher. He says a great deal of attention is being given to combating counterfeiting activities in South Africa, with concerns being expressed of a link between organised crime and fake goods.
“Many people don’t understand the concepts of ‘counterfeiting’ and ‘piracy’. His- torically, pirated and counterfeit goods were dealt with as separate issues under separate legislation – in particular, the Copyright Act and different Merchandise Marks Acts respectively. Counterfeiting of trademarks has, historically and imperfectly, been dealt with by different Merchandise Marks Acts. Piracy, which concerns copyright infringement committed knowingly, was criminalised by the Copyright Act and still is.”
Says Khader: “Under current legislation – being the Counterfeit Goods Act – the historical definitions of pirated goods and counterfeit goods are now both included in the definition of ‘counterfeit goods’. For example, the manufacturing of an unauthorised replica of a Fifa soccer ball would have constituted a counterfeit product under previous legislation and still does under the current legislation.
The emphasis here is the unauthorised use of the trademark Fifa.
“Insofar as pirated goods are concerned, that would include unauthorised reproductions of, for example, musical works and/or cinematograph films. Copyright owners of these works would have in the past relied solely on the provisions of the Copyright Act to seek assistance from the police to enforce their rights. Those owners can now also rely upon the provisions of the Counterfeit Goods Act.”
Khader says Government has adopted an extremely structured and pro-active approach to combating illegal counterfeiting activities involving a number of State organs, including Customs and Excise, the Department of Trade & Industry, the SA Police Services and the SA Revenue Service. “The focus is essentially on protecting consumers, who aren’t regarded as experts on brands and products and are therefore at serious risk if they acquire counterfeit goods that have the look and feel of the real thing.”
When many people think of knock-offs they think about DVDs, designer handbags and clothing – generally nonessential luxury items. However, the counterfeit movement has grown so enormously that it now stretches as far as the food and pharmaceutical industries. “These products look exactly the same as legitimate brands, so consumers often don’t even know they’re buying counterfeit products. Obviously, there are all sorts of health issues and other complications connected to buying goods that haven’t been approved by the regulators, and whose actual ingredients aren’t known.” While fake drugs aren’t yet a major problem in SA, Khader believes that it’s a growing area of concern, especially as unscrupulous operators look to take advantage of innocent consumers.
“While it isn’t illegal under SA law to buy counterfeit goods providing they are for personal use, South Africans have a moral responsibility not to indulge in that activity. It creates a market from which a criminal offence arises, so consumers are essentially supporting criminal activity.”
Fake drugs becoming a concern. Mohamed Khader