Counterfeit and Knockoff Goods — LEDUCATE (2024)

What’s the difference and why does it matter?

Hint - Just click on any complex legal terms to see their definitions!

What is a trademark?

A trademark is a symbol that identifies the products/service of a business to the public. A business owner can register their trademark (to make it legal). These trademarks can come in various forms, such as: words, designs, letters, numbers, colours, sounds, the shape of products or the packaging. For example, the trademarks for NIKE would be their logo, their business name (NIKE) and their slogan (Just Do It).

Once registered, businesses can enjoy the exclusive right to use their trademark in connection with their products. If the trademark is not used properly or, is not used at all, then you can lose the right to remain on the register.

How can it be infringed?

Registered marks are protected from trademark infringement, the name for an unauthorised usage of a trademark. The owner can allow others to use it however, if anyone uses the trademark without the owner’s permission or uses a mark that may be confused with the registered trademark, then the owner can sue.

Unregistered marks are protected from passing off, which essentially means that a person sells their own product, pretending that they are another person’s product. They pretend by using particular packaging or a business name that is very similar to another person’s business. Passing off also causes harm to businesses financially and damages their goodwill in relation to their services or products. Goodwill is the reputation the business has built and is used to attract customers.

Confusing the customer

On one hand, it is not necessary to prove there was an intention to deceive people. On the other hand, passing off can be difficult to prove because the original business needs to demonstrate that at least some of the public are at a risk of being confused between both businesses. It is not always easy to show that there has been a misrepresentation.

Counterfeits and Knockoffs

Counterfeit products are identical to the products of another business and therefore infringe on the trademark of that product. They may use labels that appear genuine but they are not. For example, designer handbags are commonly counterfeited. Experienced buyers are usually able to determine the original from the counterfeit by looking closely at the patterns and seams used on the bags. In addition, prices are significantly different.

Counterfeit products are illegal. They are often sold online and on street corners.

In this case, the customer is usually seen as the victim because they have paid money for something that appears to be something else. However, if the customer knows they have bought a counterfeit product and decides to sell it, then they may face legal challenges.

In contrast, a knockoff product is not identical to the original product. It will have a different design but will resemble the original product. For example, electronics such as the iPhone are common knockoff products. You can tell the difference as it may have the trademark with an alteration, such as an unbitten apple, or it may not have the Apple trademark at all. Additionally, it may not have most of the features of the original product.

Knockoff products are not necessarily illegal and the customer would not generally face law enforcement if they decide to resell it. They are sold in shops, online and in markets.

As a customer yourself, if you are concerned that what you are buying may not be real, then check the price. Usually prices are significantly lower than the original product.

Written by Sarah Josiah