During the Annual Meeting, the ABA Section of Intellectual Property Law sponsored a CLE program titled “Buyer Beware:
Dangerous Counterfeits in the US,” which discussed the problems that
counterfeit goods pose to public health and safety and highlighted the steps
that the government and private actors have taken to protect the intellectual
property of United States’ companies. In my opinion, one of the most important
takeaways from this session was that consumers need to educate themselves about
the dangers of counterfeit products and brands must not avoid discussing the
presence of counterfeit goods in their industries to preserve their market
share. Overall, it appears that open and transparent communication about
counterfeiting would be more effective in preventing injuries and deaths from
counterfeit products than shying away from dialogues about this controversial
topic.
As
one speaker stated, “if you haven’t found counterfeit products in your supply
chain, you’re just not looking.” Not only are there the traditional counterfeit
luxury products, such as designer handbags, but there are also counterfeit
electrical wires, airbags, chainsaws, and pharmaceuticals. Given that the
majority of the population would not initially think that electrical wires and
airbags could be counterfeited, it is critical to convey this information to
consumers. This is because consumers need to be able to identify the sometimes
minor details of goods that differentiate legitimate products from fraudulent
items as this attention-to-detail could ultimately save their lives. To aid in
this endeavor, some brands are enhancing their trade dress or molding their
trademarks into their products because these are more difficult to replicate
than trademarks that are applied to goods using silk screen printing.
One
industry that is rife with fake products that can kill consumers is the
pharmaceutical sector. Online pharmacies are increasing in popularity as they
provide convenience and anonymity, but, according to the National Association
of Boards of Pharmacy, only three percent of the more than 10,000 online
pharmacies appear to be legitimate. Related to this point, consumers may be
purchasing pills that only look like their prescriptions; these pills may not
even contain the requisite active pharmaceutical ingredients. Moreover, it is
shockingly simple for counterfeiters to mass produce pills in their own labs;
counterfeiters simply need a blender, ingredients, a garage, and a pill press,
which can cost between $30,000 and $40,000, and then the counterfeiters can
produce upwards of 50,000 pills per month by hand. Thus, it is imperative that
consumers know the source of their prescriptions, particularly if people are
using the Internet to purchase their medications. While many people may rely on
the URL or IP address of the online pharmacy to discern the source of the
products, this is not always an effective tactic as online pharmacies with
Canadian URLs and IP addresses may not actually be based in Canada.
Accordingly, consumers may ask: is there any guaranteed way to ensure that I am
purchasing safe and legitimate products online? Presently, the answer to that
question may be “no.”
Nevertheless,
there is hope as the United States government has increased its oversight of
imports of counterfeit goods and its prosecution of counterfeiters.
Specifically, through the efforts of the Intellectual Property Rights Center,
twenty-one federal and international agencies are collaborating with industry
leaders and law enforcement in order to stop the importation of counterfeit
goods, identity the source of counterfeit goods, and educate the public and
private actors about how to identify counterfeit products. In addition, the
United States government is also attempting to shut down domain names and
websites associated with the sale of counterfeit goods, but this has proven
difficult to do utilizing the criminal system. While counterfeiting appears to
be a central priority of the federal government, it is also imperative that
private industries and consumers actively participate in the enforcement
process. By: Melissa Lauretti, Lt. Governor of Programming
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