IP and the Fashion Industry Conference 2013: Part I

Opening this year's IP and the Fashion Industry Conference (programme here), Roy Crozier (Clarke Willmott LLP) asked registrants if they had purchased counterfeit products. After a confessional session, Roy continued by discussing the scope of counterfeiting and its current means of distribution: traditional points of sale such as the Camden Market have given way, as the social media have made their inroads.  The estimate scale of counterfeiting stands at 5 to 10% of world trade and, even with intelligence and good luck, it's hard to estimate or control it.  Counterfeiting, Roy reminded the audience, does not just mean fake goods: packaging and labelling create their own issues and, if seized or destroyed, are far cheaper to replace than are the fake goods themselves.

Roy drew attention to facilities such as Brand-i, which enable consumers to trace legitimate sources for frequently counterfeited products and to report purchases which are not legitimate.  Sadly Brand-i (see earlier Katpost here) has received relatively little publicity since its launch and the extent to which it is used by consumers and others is unclear. He also spoke of drop-shipping and its relevance to the monitoring and control of fakes. Roy then discussed the kudos of the brand, which makes a product desirable regardless of its price and thus makes successful legitimate brands so vulnerable to consumer temptation.

What can be done? Education is important: explaining to consumers why it's important to purchase real products. Even counterfeit clothing can be dangerous, since fabrics may have been washed in toxic products.  Where the purchase is made online, customer data

Next to speak was Niall Head-Rapson (McDaniel &Co.), who spoke about techniques for keeping fake fashion goods off the shelves. The solution begins with the question of how those goods get there in the first place.  Theft and unauthorised employee initiatives involving abuse of staff entitlements both add to the problem, since the goods purchased are to all intents and purposes genuine.

Niall praised the efficacy of location software, which enables you to find where goods which are described as yours are on sale; image recognition software is also useful in this regard.  Checking on use of brands in domain names and (in theory) Whois searches can all add further levels of information. Posts on the social media are most revealing when it comes to tracking brand sales. Tumblr and ask.fm were specifically mentioned in this regard.

Since fashion goods and brands depend on IP rights, the need to check which rights you own is vital. Photographs are a particular problem, since many photo-shoots are conducted by freelance photographers who may not have assigned their rights and who can be difficult to trace when needed.

As for litigation, it was possible to sue for IP infringement even in, for example, Preston or Newcastle-on-Tyne, but litigation in London was preferable because even judges who are not IP experts are more likely to ask their colleagues and get the right answer than simply decide an application on a random basis.  Birmingham was cited as a good place to seek interim injunctive relief since the local judiciary tend to assume that there must be some merit on an application for IP interim relief if someone has gone to the trouble of applying for it.

Niall then ran through the gamut of 'low-level' remedies: DMCA take-downs, eBay VeRO notices, self-help seizures of goods under s.100 of the Copyright, Designs and Patents Act 1988, domain name recovery, post-Newzbin blocking injunctions and so on. He also reviewed opportunities for utilising criminal proceedings, which are cheaper since they are paid for out of the public purse, not the private pocket.