William M. Mansfield
Director, Intellectual Property, ABRO Industrries, Inc.
Adjunct Professor, University of Saint Francis

Kyle Mattern
B.A. Stduent, University of Saint Francis

We have long made a distinction in the brand protection community between deceptive and nondeceptive counterfeits. It is a pretty straight-forward distinction.  A deceptive counterfeit fools a consumer, such as when a person orders what they think is a real branded product, but an identical fake is delivered instead. A nondeceptive counterfeit is more like when you buy a $20 “Chanel” bag on the street corner – both the buyer and seller know that it is a counterfeit.

Now a significant number of users of the ecommerce site DHgate.com, and other platforms, are creating a third option –what we will call  the “deceptive assist” counterfeit. Many products on DHgate.com are advertised without unauthorized trademarks in either descriptions or the seller provided photos, in fact without any trademarks.

In the above image, notice that, not only is there no use of a famous trademark here, but the photo watermark consists of repeated uses of the term “plainbags”. What the consumer gets, however, is a counterfeit product with the unauthorized trademarks affixed, similar to this item shown by another buyer in the below image where you can see the distinctive Louis Vuitton® LV monogram.

But for the DHgate.com shopper receiving this counterfeit “Louis Vuitton” bag instead of the plain bag they apparently ordered does not come as a surprise.  Instead, it is exactly what other consumers also using DHgate.com said would happen in the comment section of the posting.

The comment section of a DHgate.com listing often provides the key information that the original post by the seller left out.  That the plain bag being offered is not what a buyer will get. Instead, other purchasers explain what type of counterfeit will be sent instead.  They even show photos of their past purchases that clarify the exact nature of the counterfeit. 

Here, in the image below, we see that a previous purchaser has provided a picture of the delivered item (again with the world-famous Louis Vuitton® LV monogram) as well as statements that the “logos are identical” and that they “don’t see a difference between this and the authentic one”. 

Clearly, the consumer here is not deceived. They know that they are purchasing a counterfeit bag. More than that, however, is the fact that prior purchasers act as the guarantor and information source for future consumers. The seller is able to (ostensibly) avoid legal liability by posting a plain bag and not discussing any unauthorized use of intellectual property. But they can only do this because of the willful and knowing assistance of prior consumers.

Now, it could be that these “consumer accomplices” are in fact just the seller using a different account, but our initial review would suggest otherwise. The “consumer accomplice” posts are more numerous and varied than one would expect if it was merely the seller offering counterfeit goods via two accounts. This approach also fits within the observed rise in consumers more actively engaging in buying fakes, or dupes (i.e. the “pro-dupe” movement).

What practical take-aways should brand protection professionals take from this?

It is not enough to look at the seller’s post when investigating possible counterfeits. You must also dig into the comment section. That is the new frontier for the sale of fakes.

Liability for “consumer accomplices” needs to be considered. Here, they are not just passively supporting counterfeiting but are active and essential accomplices to the illegal activity. As sellers of infringing products work to hide their crimes, influencers and accomplice buyers are moving from bystander to criminal. If we want to halt this transition, we need to consider where we draw the line. In the two-step DHgate.com structure described above, we can no longer ignore them.

As online sellers continue to adapt in response to online policing, it is more important than ever that we explore every possible method to halt counterfeits earlier in the illicit supply chain.  Once the fake product has made it online, it is increasingly difficult to stop. Targeting factories and major offline distribution centers is one of the most effective way to stop fakes.