Identifying and Compiling Data for Prosecution and Law Enforcement
Associate Vice President of Brand Protection, Investigations and Data Analytics, Recom
BPP readers are well-versed in the dangers that counterfeits pose to consumers and a brand’s reputation. From health hazards of substandard materials or harmful substances, to poor quality control and the resulting malfunctions, injuries and accidents, counterfeits undermine the economy and legitimate businesses. Not only that — they also support illegal activities like money laundering and organized crime. According to the U.S. Chamber of Commerce, counterfeit products cost the global economy over $500 billion per year. That’s more than the United Arab Emirates’ GDP (U.S. Chamber of Commerce, 2022)!
Having participated in copious anti-counterfeit initiatives for the entertainment, cosmetics, and luxury goods industries over the past 10 years, I can confidently say that your ability to be both proactive and reactive in identifying and tackling counterfeits is key to any brand protection strategy.
Be Proactive: Identify Counterfeits (before the consumer does!)
The last thing you want is to find out you have a counterfeit problem through negative press or reviews, especially in today’s social media climate, where influencers have been found to be endorsing counterfeit products (Reed, 2023). Always be on the lookout, both in and outside of your known authorized retailers or marketplaces. Sometimes even authorized retailers or resellers try to cut their costs by finding an alternate source — a wholesaler, liquidator, or international third-party marketplaces like Alibaba, where they end up unknowingly sourcing counterfeit products. This happens to major brands regularly, regardless of how comprehensive their BP strategies may be.
Look for remarkably low prices, poor quality images and product descriptions, misspelled brand names, incorrect logos, or negative seller ratings. Even the website or marketplace itself may show some indicators, stating that they source their product from suppliers not registered on other wholesale platforms (e.g. Supply Leader). These sorts of admissions are often a giveaway that someone is selling an inauthentic product. In some cases, sellers may use vague or misleading language to describe the product or avoid providing key details about the product’s origin or manufacturing process or mentioning the trademark to avoid action.
Other possible proactive measures include enrolling your trademarks in programs with the various platforms such as Amazon’s Brand Registry, Project Zero and Transparency which use machine learning and authentication technology integrated at supply-chain level to eliminate counterfeit listings (Amazon, 2023).
Confirming counterfeits and taking appropriate action is vital in protecting your brand and consumers from harm, containing the problem, and preventing further spread. Still the best way to confirm whether an item is counterfeit is via test buys and forensic examination. In this regard, it is of paramount importance that due diligence is exercised through thorough analysis and accurate compilation and presentation of the relevant data, especially when taking the ultimate step of seeking prosecution and working with law enforcement to pursue the counterfeiters.
Reactive Action: Tackling Counterfeits
Once you’ve identified a potential counterfeit product listing, conduct a test purchase and examine it for signs of inauthenticity. This may include comparing it to authentic products and examining its packaging, labels, and any other details: misspelled words, weight and feel, material quality, or incorrect logos. Counterfeit designer goods may have sloppy stitching (Cullinane, 2021), while food or cosmetics may not be properly packaged (Businesswire, 2023), have bad odors and discoloration, or lot numbers and expiration dates that either don’t exist or don’t match the manufacturer’s records.
Some products may require forensic or expert examination; counterfeit vinyl records may have jagged edges, or may require inspection of the grooves using specialized tools. Maybe that record was never even released on vinyl format (Sanchez, 2018). Some items may require lab-testing, like paint, ink, or cosmetics, which can be examined using techniques like chromatography — identifying chemical signatures of specific ingredients that should (or shouldn’t) be present (Salahieh, 2020). Then there are more advanced detection techniques, like DNA testing, which can be used to verify the origin of leather goods (Matar and Merheb, 2016).
It’s one thing to confirm an item is counterfeit, but without proper documentation and preserved evidence, it can be hard to pursue appropriate legal action or achieve victories in prosecution. Below is a five-step routine to ensure preservation of evidence and getting it into the right hands:
- Keep detailed records of suspicious activity and sales: names and contact information of sellers, screenshots of product listings, (and if it’s legal in your jurisdiction, covert recordings of any undercover counterfeit trade deals) as well as any other relevant identifying information about the products being sold. Preserve all communications with the seller or website, including email correspondence or order confirmations.
- Take photographs of the counterfeit merchandise and packaging. Photographs provide critical visual evidence and can be used for comparison against authentic products.
- Preserve the evidence, such as product samples or packaging. Try to keep the product in its original packaging and store it in a secure location. Take steps to prevent tampering or damage to the evidence. This can be done with individually numbered and labelled, sealable evidence bags which ensure easy access to a specific item if required later on in proceedings. This is made even easier by recording each seller, product, and order number alongside the corresponding evidence ID.
- Use experts (manufacturers’ labs, forensic experts, authenticators, or appraisers) to evaluate the counterfeit merchandise and provide detailed analyses and reports that can be used in legal proceedings. Such experts can also help quantify monetary damages, which are important to specify when prosecuting.
- Report to authorities, such as law enforcement agencies or consumer protection agencies such as stopfakes.gov. Be ready to share any evidence or information you have gathered and work closely with the authorities to ensure that the evidence is admissible in court and that the counterfeiters are successfully prosecuted.
The fight against counterfeits is an ongoing ‘whack-a-mole’ struggle. In 2022 alone, U.S. CBP seized almost 25 million counterfeit items worth a potential $3 billion (U.S. Customs and Border Patrol, 2023). By taking a range of proactive and reactive approaches, you can combat counterfeiting, protect your brand and consumers from harm, and reduce the further spread of counterfeits. Evidencing counterfeits and compiling data for law enforcement and prosecution requires careful documentation, preservation of evidence and the involvement of experts if it’s going to stand up in court.
THE BRAND PROTECTION PROFESSIONAL | JUNE 2023 | VOLUME 8 NUMBER 2
2023 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES