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The Brand Protection Professional
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COUNTERFEITS:

Identifying and Compiling Data for Prosecution and Law Enforcement


Ed Jacobs
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:

 1. 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.
 2. Take photographs of the counterfeit merchandise and packaging. Photographs
    provide critical visual evidence and can be used for comparison against
    authentic products.
 3. 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.
 4. 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.
 5. 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







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BP FORUM: IP PROSECUTION



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GUIDING LAW ENFORCEMENT, PROSECUTORS, AND IP RIGHTS HOLDERS IN EUROPE WITH JOHN
ZACHARIA


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