Fashion fortified: top tips to combat counterfeiting

Celebrating its 40^th year, London Fashion Week is upon us and as the hype of people’s fashions on and off the catwalk grips our attention, now is a good time for brand owners and designers to reflect on how to protect their products from counterfeiters. Counterfeiting is big business and a survey published by Trading Standards in 2023¹ revealed that clothing was the second largest category investigated in relation to counterfeit products. 

As the popularity and strength of a clothing or fashion brand and its designs grows, so will the risk of counterfeiters. It is therefore prudent to devise a robust anti-counterfeiting strategy from the outset and to regularly monitor and implement it. A robust and tightly managed strategy early on, can pay dividends later, saving a brand’s reputation from being tarnished and reducing loss in sales and revenue. 
 
Anti-counterfeiting strategies will vary from business to business, and the actions needed will depend on the type of product sold and how/where counterfeiters generally target. Below are some ideas that brand owners (not only fashion or clothing brands) should consider including in their strategy. 
 

What can you do to protect your brand against counterfeits?

• Educate your customers – tell them about the dangers/effects of purchasing counterfeit products, and how they can be sure the product they buy with your brand name attached is genuine (e.g. price; where genuine product is sold).
   

• Ensure your products have an identifier to verify their authenticity – this is becoming more popular with brands as the counterfeit products become harder to detect. Utilising technologies such as a radio frequency ID tag (RFID), QR codes, or a thermally activated tamper-proof seal makes it harder for counterfeiters to replicate products.
   

• Register your trade mark or designs – this makes it easier (and sometimes cheaper) to take legal action and enforce rights against counterfeiters. A trade mark registration gives stronger rights and a clear date of protection. It also allows you to implement further anti-counterfeiting strategies (see AFA’s and Brand Registries below). You can register a trade mark at any time so if you have already established your brand, it’s not too late to file a trade mark application now.
  
  As with a trade mark registration, a design registration gives a clear date of protection and makes it easier to enforce your rights than relying on unregistered design rights. A design registration protects the appearance of your product and can cover all or part of the product. An application for a design must be filed within 12 months of the product first being disclosed to the public. 
   

• File a UK Application for Action (AFA) with HMRC and other relevant Customs authorities – an AFA is filed via HMRC and passed to UK Border Force who monitor incoming deliveries. AFAs contain information about brand, intellectual property rights (for example trade marks, designs, patents or copyright), how to spot genuine and counterfeit products and known importers/exporters of genuine and counterfeit products. This allows the UK Border Force (or relevant authority if in other jurisdictions) to identify counterfeit products more accurately and notify you of any seizures. 
   

• Collaborating with the authorities (Police Intellectual Property Crime Unit (PIPCU) or Trading Standards) – PIPCU and Trading Standards can investigate, search premises, seize goods and initiate criminal proceedings which can be a further deterrent to repeat offending over and above any civil action. They can also implement other remedies such as penalty notices, cautions and undertakings.
   

• Register your brand with online marketplaces – as with an AFA, if you have registered trade mark rights, you can register your brand on well-known market sites, for example eBay’s VeRO (Verified Rights Owner) program and Amazon’s Brand Registry. This makes it easier to report violations on the sites and helps to intercept counterfeits before they go to market.
   

• Online monitoring – monitoring online activity using specialist automated tools. This is particularly important with the rise in digital technology, dupes, and third-parties promoting counterfeit products. 
   

• When you find a counterfeit product of your brand, act on it – the above strategies will only pay dividends if you enforce your rights when you come across counterfeit products. A common first line action is to send a cease and desist letter to sellers of counterfeit products and to carry out further investigations. 

The above is a taster of the things you can do to protect your brand which should be a top priority in protecting your business. Kilburn & Strode’s anti-counterfeit experts can help protect your brand and bullet-proof your strategy against potential threats on your IP. If you would ever like to discuss any of the above, please don’t hesitate to contact Lisa Waithe and Carol Nyahasha or your usual Kilburn & Strode advisor.