Counterfeiting comes in many forms, and is nothing new in business or in the law of intellectual property. However, where counterfeit goods are becoming nearly imperceptible, they pose a real risk to the owners of the trademarked goods, because they are “knock offs”, and the buyers who believe they are getting the real thing.
In recent times counterfeiting has come to the fore, as the Counter-Terrorism and Organised Crime Investigation (C-TOC) branch of the Jamaica Constabulary Force has raided several businesses and seized counterfeit goods in an effort to clamp down on this illegitimate market. This enhanced vigilance and enforcement in relation to counterfeit goods has been greeted with much commendation from the owners of trademarks that have been infringed by the counterfeit goods.
Under trademark law in Jamaica, counterfeiting of a trademark, particularly a famous trademark, affects the mark, though the degree of harm to the mark may vary.
The harm that can arise is usually where there is confusion because of the similarity of the goods, one counterfeit and one genuine. Take for example where a consumer purchases a counterfeit, luxury brand handbag under its well-known registered trademark, the harm arises where:
(i) The public views the counterfeit handbag as the genuine thing;
(ii) It is discovered that the handbag is a fake and the market is flooded with the counterfeit handbags, causing consumers to be apprehensive as to whether they are purchasing the genuine handbag, and further causing the sale of the genuine handbag to decline;
(iii) The value of the genuine handbag, which is derived from considerations such as quality or limited supply, is significantly reduced by all the imitations; and
Leave A Comment