Counterfeit goods
Intellectual Property Rights

What is Counterfeiting?

Counterfeiting and piracy are terms often used interchangeably. Both refer to infringement of intellectual property rights. The four main areas of intellectual property are copyright, designs, trade mark law and patents. Each of these areas requires registration with the exception of copyright, which applies automatically upon the creation of a work that qualifies for protection. Counterfeiting denotes an unlawful use of trade mark rights and piracy relates to misappropriation of copyright. It is important to understand both, as they take place in practice concurrently. Other areas of law apply, depending on the nature of the counterfeit product and the intellectual property rights vesting in it. that has been copied. Forgery is not a term well suited to designate illegitimate goods, and only serves to confuse matters.

Article 51 of the Trade Related Aspects of Intellectual Property (TRIPs) Agreement defines counterfeiting as follows:

"counterfeit trade mark goods shall mean:

1. goods, including packaging, bearing without authorisation;
2. a trade mark;
3. which is:
   • a. identical to the trade mark validly registered in respect to such goods, or
   • b. cannot be distinguished in its essential aspects from such a trade mark,
4. which cannot be distinguished in its essential aspects from such a trade mark, and
5. which thereby infringes the rights of the owner of the trade mark
6. under the law of the country of importation."

And piracy:

“Pirated copyright goods shall mean:

1. any goods which are copies;
2. made without the consent of the right holder or person duly authorised by him;
3. in the country of production;
4. which are made directly or indirectly from an article;
5. where the making of that copy would have constituted an infringement of copyright or related right;
6. under the law of the country of importation.”
7. counterfeit product is one which imitates the protected form of the genuine article both in form and appearance. On the other hand a pirated copy reproduces the protected content of the copied product.

Counterfeit products vary in quality, whereas pirated copies tend to be closer to the original. The appearance of a pirate product may differ the genuine product, and may be supplied in a completely different format. Counterfeiting is a deception in respect to the nature and quality (which is not necessarily high) of the goods.