‘Knock-offs’ can spell dan­ger

‘There are all sorts of health is­sues con­nected to buy­ing goods that haven’t been ap­proved’

Finweek English Edition - - Spoor & fisher -

“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

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