DEALING WITH COUNTERFEITING REQUIRES AN INTERNATIONAL APPROACH

In 1988 I was the Secretary General of the Geneva-based International Committee Against Counterfeiting (COLC) headed by the former President of the Swiss Confederation to fight on an international level against all attacks on intellectual property rights, namely counterfeiting and unfair competition as well as influence international, intergovernmental or supranational organizations as well as government leaders on the need for increased protection and law enforcement. We did call on many governments in Europe and around the world. Members of the COLC included Union des Fabricants, Moët Hennesy, Louis Vuitton, Rolex, Industrie Horlogère Suisse and many brands.

34 years later, and while the counterfeiting problem is in the agenda of many governments and legislators around the world, there  are still too many places where the current anti-counterfeiting legislation is incomplete, insufficient, or simply not effective.

A problem in many countries is simply the definition of what constitutes commercial counterfeiting, as well as which sanctions can be imposed against those involved in such activities even when they are clearly defined. In some countries, counterfeiting as such is not considered to be a criminal offence, but merely a misdemeanor. In others, the criminal definition of counterfeiting only applies to counterfeit production and not to counterfeit trading. And in others, the thresholds to consider counterfeiting as commercial, and with that a crime, are unrealistically high.

Without criminal sanctions, the deterrent to engage in counterfeiting is simply not there. Counterfeiting can be hugely profitable and for many, weighing the sizable potential profits against the absence of comparable criminal sanctions makes counterfeiting an attractive risk. The stakes need to go up in those countries where at this point counterfeiting is not treated realistically. Legislation should be clear in defining counterfeit activities and should be even clearer in setting firm and realistic sanctions, making appropriate use of both monetary sanctions and imprisonment. Only by raising the stakes, can the rampant growth of this problem begin to be slowed

In too many countries, government authorities involved in the fight against counterfeiting are ‘going solo’. There is a lack of communication and cooperation between the authorities handling matters within the internal market and those authorities involved in preventing counterfeit goods from entering  or leaving the country. This becomes especially apparent when cases need to be transferred from one authority to another, or when information should be shared by two or more agencies.

Also, cooperation with brand holders is often problematic or unnecessarily complicated. The sharing of information between the rights holders and authorities is often impossible, or the requirements to enable information-sharing are simply unrealistic. Efforts to combat counterfeiting are therefore fragmented and a lot of valuable intelligence and synergies are lost.

Countries that are at the front line of the counterfeit battle, should think of ways to help their enforcement authorities to more effectively cooperate, amongst themselves but also with brand holders. And it would even be better if the same countries could come up with a system in which their authorities could better cooperate internationally, by means of intelligence sharing and information exchange. Only a true international approach will be effective in fighting a truly international problem.

While there is a need to apply pressure on Asian governments, the presence of manufacturing facilities in Europe some for partial assembly and others running full production cycles is an increasing trend and countries such as Turkey and in the Western Balkans to name a few need to be fully engaged.