Know what you are buying for personal use & be careful of what you buy for resale.
30/08/2011

As we are all aware, Intellectual Property Law is a large part of what we do at Adams & Adams. Our litigation teams are focused on combating the infringement of our client’s intellectual property rights on a daily basis. This applies particularly to matters in which we take action on behalf of our clients to curb the smuggling of counterfeit goods into the Republic or prevent the sale of such goods in this country. It is therefore extremely important that we, as a firm, all understand what counterfeit goods are, what the consequences are of dealing in such goods and how we can protect ourselves and our clients from harm caused by counterfeit goods.

Counterfeiting is a global problem. It is not only a recognised economic parasite which diminishes brand value, subverts government tax revenue and reduces our clients’ profits, it also creates a real danger to end consumers.

A growing trend in South Africa is that counterfeit goods are not limited to everyday items such as clothing, jewellery, cigarettes, cellphone accessories etc, but extend to even highly sophisticated industries such as the motor vehicle, foodstuff and cosmetics industries, to mention but a few.

In terms of the South African Counterfeit Goods Act (CGA), any person found dealing in counterfeit goods, which means being in possession of such goods for purposes of trade, importing, marketing, displaying for sale, distributing, bartering or exchanging counterfeit goods, is subject to both criminal and civil sanctions. The CGA provides a maximum penalty in respect of first time offenders of R5000 per item, or 3 years imprisonment. Repeat offenders face a maximum fine of R10 000 per item, or 5 years imprisonment. It is clear that dealing in counterfeit goods is a serious crime with very serious consequences.

The bottom line is that, any person wishing to import branded goods, for purposes of trading in those goods, or selling and/or offering for sale branded goods, should ensure that such goods are supplied or purchased from the owner of the relevant copyright or trade marks, or from persons authorised to distribute or to sell such goods. Ignorance is not bliss as the CGA places an obligation on persons importing or selling such goods to take all reasonable steps to ensure that those are not counterfeit.

Depending on the nature and type of the counterfeit goods, such goods could potentially be detrimental to your health (for example counterfeit foodstuffs) or most likely to put your life at risk (counterfeit motor vehicle brake pads or mag wheels).

Finally, while counterfeit goods are generally of poor quality, it is not always easy to distinguish counterfeit from genuine products. However, if, for example, the price is too good to be true for any particular product, this should raise an alarm in your mind that such product is probably not a genuine item.