There are several protection, monitoring and enforcement strategies that brands in the fashion sector should consider:
Trade mark protection is crucial for both the main brand and brands associated with core or high-performing product ranges. Businesses in the fashion sector should also consider other types of IP protection such as registered designs in respect of surface patterns, prints or novel/unusual product features that might be copied by counterfeiters.
It is advisable to record IP rights at customs both in a brand’s domestic market and major territories of interest, such as the EU, to try to stop the flow of counterfeits into consumer hubs. As mentioned above, research suggests that counterfeit fashion goods are entering the EU market in particular from Turkey and that there is a prevalence of counterfeit luxury fashion goods in South East Asia at the moment, so it would also be advisable to consider customs action in all of these territories to try to disrupt counterfeiting networks and supply chains. This is particularly the case if the territories in question act on exports as well as imports. China is of course another country to consider in this assessment.
When liaising with customs, it is crucial to provide as much information as possible on how to identify counterfeits, as fake products can be highly sophisticated. Having a dialogue with customs officials ensures they remain informed both on new counterfeiting techniques and trends, and in relation to your genuine supply and distribution network which may change over time. Open lines of communication with customs authorities also allow you to collect information from seizures such as the importer and exporter, which can inform domestic action against responsible parties if there is a clear trend and a serious problem develops.
It is also important to engage and develop a relationship with other enforcement bodies in the UK such as Trading Standards, as there are still many physical marketplaces across the country selling counterfeit goods that can be seized and from which prosecutions can result.
Brands could consider using appropriate anti-counterfeiting technologies on their genuine products, and this may also help to identify fakes if these are not present. This could include holograms on swing tags or labels, QR codes (although these are potentially easily replicated), RFID tags and guarantee/tamper proof seals. Some brands are also using developments in blockchain technology as a tracking system through the supply chain to help with authentication, although implementation may be expensive.
E-commerce and social media are likely to be a problem for fashion brands so a robust online anti-counterfeiting strategy is important. As discussed further in the upcoming chapter on counterfeit trends, the rise in counterfeit and “dupe” culture online is a particular problem in the fashion sector. A diverse IP portfolio (including registered designs) can help brand owners tackle some of these issues but there are also non-IP considerations particularly in relation to the narratives around counterfeits perpetuated by some influencers online that brands should be mindful of here (discussed further in our chapter on counterfeiting trends).
Finally, brands in the fashion sector should be vigilant about leakage in their manufacturing and distribution networks - so-called “third shift” or “ghost shift” counterfeiting whereby manufacturers overproduce products (either with or without branding) and sell the excess items without authorisation and through illegitimate channels. It is important to conduct regular due diligence on all suppliers and to ensure that your supply chain is as transparent as possible.
