The BP Forum takes a unique turn this edition, as we ask several experienced IP investigators to opine on the newest challenges in investigating and pursuing counterfeiters. We hope these views from various perspectives and a combined experience totaling 186 years will prove instructive and informative and provide valuable information for our own strategies.
WHAT ARE THE NEW CHALLENGES YOU SEE IN INVESTIGATING AND PURSUING COUNTERFEITERS?
Investigator for 32 years, CerberusIP, UK/Turkey/Russia
The biggest and ever-expanding challenge is online. China is one of the fastest developing economies in the world, and trading platforms like Alibaba ($475 billion in sales 2016) and Taobao are increasingly prominent with counterfeiters. B2B trade from these and other sites is replacing traditional exporter/importer/wholesaler routes and can be harder to disrupt because there are many very small transactions to intercept between factory and consumer. Hitting these big B2B traders’ supply chains in China removes far more product than hitting consumer-facing sellers. Moreover, these counterfeiters are themselves more elaborate and technically capable than ever before in producing intricate copycat designs. To tackle these, we need to be aggressive on Chinese B2B platforms where each target is likely to be operating on a much larger scale.
Investigator for 30 years, Intellectual Property Management Services (IPMS), UK/Europe
In a constantly changing marketplace where on-line platforms and social media have, to an extent, replaced the direct sale of infringing products, it is essential to remain one step ahead of those who manufacture and supply such products. I have no doubt that following the financial transactions can greatly assist investigators in having a much bigger impact on these sellers. There is a greater requirement from both the selling platforms and the payment providers to have a more substantial input that enables brands to protect their intellectual property. This would allow the profits from the illegal sales to be targeted as well as acting as a divert-and-disrupt tactic.
Investigator for 16 years, INQ Global, UK
The goal posts are constantly changing for an IP Investigator; just when you think the brand is untouchable, you see/find something and realize it isn’t. Constantly changing trends and attitudes in the genuine market are immediately replicated by the counterfeiters who invest time and money in making the perfect copies. Brands are having to introduce bespoke anti-counterfeit technology from 2D bar codes to hidden features, but it’s only a matter of time until the counterfeiters are copying this technology too. The internet has advanced our development as a society but counterfeiters also use it now and more constantly on the ‘Dark Web.’ We need to be clever enough to play them at their own game by using and developing online tools to match theirs. The rise of new trade routes such as ‘The Silk Road’ shows how we need to change our outlook on how goods can be moved, especially from Asia into Europe and beyond by rail, sea, and air. Brand protection professionals need to constantly evolve and adapt our own skills and methods to keep one step ahead, be it by implementing the latest security technology or working closer with law enforcement. Ultimately, making sure that we don’t forget that good old fashioned detective work, with boots on the ground, is a key component of any successful BP strategy.
Investigator for 21 years, Advanced Investigative Services, Inc. Midwest U.S.
The digital era continues to evolve and be an uphill battle when investigating and pursuing counterfeiters, but drop shipping currently poses one of our biggest hurdles. When you make an internet undercover buy and receive the package with a return address, you may think you have a starting point to establish jurisdiction—only to find out that the return address is fake or they are using a drop-shipping store. These stores will not provide information on the shipper without a subpoena. Sometimes the return address is a case of stolen identity to facilitate the opening of online accounts. Counterfeiters don’t care about getting the counterfeit merchandise back; they just care about a good rating. So they tell the customer to send the merchandise back and the “shipper” will send out another one. The returned item shows up on a doorstep of someone who may keep it, throw it away, or reach out to the courier. But because the package bears a false return address, an investigation based on the purchase may stop there.
Investigator for 30 years, Brand Security Corporation, Western U.S.
Navigating the constant innovation of technology and identifying the individual counterfeiters behind this technology has been the newest challenge. Most IP investigations start with an undercover purchase. An actual visit to a fixed retail location, wholesaler, mall, or swap-meet to make a simple undercover buy is no longer the standard. The online world has exploded into a new generation of “work from home” counterfeiters who use social media, apps, and multiple platforms to sell their goods. From the investigative side, the online purchase process is intricate and involves establishing multiple undercover identities and accounts through ever-changing platforms. For face-to-face transactions, we contact sellers directly through platforms such as OfferUp, LetGo, or Facebook Marketplace, and negotiate in person meet-ups, all while maintaining a digital evidence trail of text messages, screenshots of the items offered, and various payment processors. Unmasking the counterfeiter behind all the apps, platforms, and social media is perhaps the biggest challenge we face, as it’s easy to hide in a limitless world of digital data.
Investigator for 22 years, Investigative Consultants, Western U.S.
The counterfeit trade is changing and constantly evolving. Counterfeiters are smarter than ever and are using every tool at their disposal to evade detection by law enforcement and brand protection professionals. The biggest challenge brand protection investigators face today is how to properly investigate higher-level targets that are engaged in the sale of counterfeit goods. Since sophisticated counterfeit organizations know how traditional investigations work, they are using technology and other techniques to mask their identities and the scope of their operations, including their financial transactions. High-level counterfeit operations are now conducting background checks on new “potential customers.” These operations hire professional investigators to ensure that their potential customers are not actually law enforcement personnel or others investigating them. The background checks include in-depth social media research and every other search that is available through Open Source Intelligence (OSINT). We have experienced this new “vetting,” with these investigations and subjects are now even asking to see official government issued identification. Today’s investigator needs to have legitimate undercover businesses with bank accounts, credit cards, website, social media and everything else that a legitimate company has in order to properly infiltrate these organizations and not be compromised.
Investigator for 13 years, Vaudra International, Southeastern U.S.
The relentless evolution of technology, along with its ever-increasing accessibility, creates a wealth of new challenges (and opportunities) within the IP realm. It’s exhilarating and exhausting at the same time. As investigators, we must remain vigilant of cutting-edge tools and tricks that make us more effective, while knowing that the savvy counterfeiter is doing the same. The counterfeiter’s survival instincts kick in with a tech twist, e.g., frequently changing mobile numbers; setting social media accounts to private; communicating through WhatsApp; moving sales to Facebook marketplace; accepting payment with Bitcoin. Counterfeiters adapt technologies to suit their needs, so our investigative strategies adapt too. With every step brands take to create new products or protect them, counterfeiters have growing accessibility to technology to mimic those footsteps. We all have to stay on top of our game.
Investigator for 22 years, IPCybercrime, Western and Southern U.S.
Currently, the greatest challenge in investigating and pursuing counterfeiters is the lack of effective strategy in the industry. For thousands of years, the goal in curtailing crime has been to catch criminals and hold them accountable in a way that would both stop them and deter future offenders. Until about ten years ago, this was the overall strategy in the anti-counterfeiting industry. The latest trend has been to take away domain names and cancel merchant accounts. This approach teaches counterfeiters to adapt and encourages them to continue. Any effective enforcement program must begin with the simple concept that the offender’s life will be changed, not inconvenienced. Just as a diet pill is no alternative to eating less and exercising, there is no alternative to the sensible approach of catching bad guys, stopping them, punishing them, and showing the next guy in line that he, too, will be stopped and punished.
THE BRAND PROTECTION PROFESSIONAL | SEPTEMBER 2017 | VOLUME 2 NUMBER 3
2017 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES