Legal fake

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Legal fake is a phenomenon in the fashion industry wherein a third company precedes the original brand company in the registration of the trademark, running its own business, from production to sales, in another country. By exploiting the products, creativity, marketing, and advertising strategies of the original brand, the company misleads consumers, who are not aware that the goods are fake goods. Thus, its typical traits lay upon the question of intellectual property, trademark registration laws among different countries, advertising strategies, and consumer behaviour.

Contents

Legal fake, like all contradictions in terms, uses auto-antonym to illustrate a rhetorical point. Legal fake is not a legal term and should not be confused with counterfeit. Although it replicates the original products, its aim is to create a new business parallel to that of the original brand, proposing itself as an authentic brand. Compared to counterfeit products, legal fakes exploit brands that are well-known only to specific groups of people.

The Supreme case

The term legal fake was first used in reference to a legal case involving the American streetwear company Supreme, and an Italy-based company by the same name (Supreme Italia). [1] [2] [3] [4] Supreme Italia was brought to court in 2016 by Supreme New York (Supreme NY). The latter company claimed that their trademark and brand image had been damaged. [5] [6] Through this case, several judgments by the Tribunale di Milano  [ Wikidata ] clarified and defined what "legal fake" means. [7]

Judgments and laws

According to the court ruling, the existence of a "parallel" Supreme brand was permissible due to an ambiguity in the trademark registration process in Italy. Trade Direct Srl (Supreme Italia) filed its application at the UIBM (Italian Patent and Trademark Office) on 18 November 2015 and started producing and selling its products, changing little of the original box logo, which was simply made bigger. Supreme NY had registered its trademark on 9 October 2015.

No new creative elements were added to the legal fake version, as stated by the first judgment from the Tribunale di Milano of 26 January 2017, according to which the Italian company repeatedly used the same brand, advertising images and graphics as the American one. Supreme Italia aimed at targeting a wider range of consumers by looking for more shops and retailers throughout Italy for the products distribution. This process brought Supreme Italia into the spotlight, reaching Supreme NY's attention and leading to the legal case.

After the second judgment of 20 April 2017, [8] the final judgment of 26 January 2018 stated the "parasitic" unfair competition [9] behavior of Trade Direct Srl and its consequences: 120,000 Supreme Italia items had to be withdrawn from the market and the company was to pay €5,500.00 to Supreme NY for fees and legal expenses. [10] [11]

Other cases

Other brands involved in similar processes include Boy London, [12] Pyrex Vision, [13] and Kith NYC. [14] In all these cases both the brand name and logo, the concept and the items themselves were copied from the original company and sold in another country as if they were the original items; however, no legal actions have yet been taken. [15] [ needs update ]

Influencers, strategy, and cybersquatting

Legal fakes are possible because they take advantage of uninformed consumers, who can be easily deceived and influenced by the latest trends promoted through celebrities endorsement and social networks or digital platforms. It is now among the most widely used communication strategies which have recently proved to be efficient and able to reach the goal of credibility among consumers. [16]

The strategy behind legal fakes involves exploiting brand recognition to catch the attention of consumers who may be interested in the original brand. By selling products that are similar to the originals, but at a lower price or in places that are more accessible to consumers, legal fakes can capture additional sales without spending resources to build brand recognition.

Cybersquatting is a form of digital legal fake where a company creates a website using a domain name which is almost identical to the original, but has a different extension or additional words such as "official" or "original" to deceive consumers who are looking for the original brand and may not be familiar with common internet fraud tactics.

Consumer rights

The question of how consumers can protect themselves from counterfeit and being deceived needs to be mentioned. Information and a corresponding compensation possibility to counterfeit are key points that consumers need to be aware of.

The United Nations General Assembly has itself worked on this issue and provides a list of eight principles. After J.F. Kennedy employed the term consumer rights in his address to the U.S. Congress in 1962, it has been extended to issues dealt by supranational organisations such as the European Union and the United Nations. The latter has adopted in 1985 a set of eight consumer rights as guidelines for consumer protection. [17]

The three most relevant for the topic of legal fake are the following:

Related Research Articles

<span class="mw-page-title-main">Counterfeit</span> Making a copy or imitation which is represented as the original

To counterfeit means to imitate something authentic, with the intent to steal, destroy, or replace the original, for use in illegal transactions, or otherwise to deceive individuals into believing that the fake is of equal or greater value than the real thing. Counterfeit products are fakes or unauthorized replicas of the real product. Counterfeit products are often produced with the intent to take advantage of the superior value of the imitated product. The word counterfeit frequently describes both the forgeries of currency and documents as well as the imitations of items such as clothing, handbags, shoes, pharmaceuticals, automobile parts, unapproved aircraft parts, watches, electronics and electronic parts, software, works of art, toys, and movies.

<span class="mw-page-title-main">United States trademark law</span>

A trademark is a word, phrase, or logo that identifies the source of goods or services. Trademark law protects a business' commercial identity or brand by discouraging other businesses from adopting a name or logo that is "confusingly similar" to an existing trademark. The goal is to allow consumers to easily identify the producers of goods and services and avoid confusion.

<span class="mw-page-title-main">Ray-Ban</span> Eyewear company

Ray-Ban is a brand of luxury sunglasses and eyeglasses created in 1936 by Bausch & Lomb. The brand is best known for its Wayfarer and Aviator lines of sunglasses. In 1999, Bausch & Lomb sold the brand to Italian eyewear conglomerate Luxottica Group for a reported $640 million.

<span class="mw-page-title-main">Lanham Act</span> United States trademark law

The Lanham (Trademark) Act (Pub. L.Tooltip Public Law  79–489, 60 Stat. 427, enacted July 5, 1946, codified at 15 U.S.C. § 1051 et seq. is the primary federal trademark statute in the United States. In other words, the Act is the primary statutory foundation of United States trademark law at the federal level. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.

<span class="mw-page-title-main">Mivar</span>

Mivar, was an Italian factory of consumer electronics and furniture. The brand has since been relaunched by the owner's heirs.

Corelle Brands Kitchenware products maker and distributor

Corelle Brands, LLC was an American kitchenware products maker and distributor based in Downers Grove, Illinois. In 2019, the company merged with Instant Brands.

<span class="mw-page-title-main">Brand piracy</span>

Brand piracy is the act of naming a product in a manner which can result in confusion with other better known brands. According to author Robert Tönnis The term brand piracy is unauthorized usage of protected brand names, labels, designs or description of trade. Annika Kristin states "brand Piracy is considered to be the premeditated use of registered trademark, its name, its tradename or the packaging and presentation of its products". It is a major loss to MNEs around the world as it causes a loss of revenue and image of the brand.

<span class="mw-page-title-main">Counterfeit watch</span> Unauthorised copy of an authentic watch

A counterfeit watch is an unauthorised copy of an authentic watch. High-end luxury watches such as Rolex, Patek Philippe and Richard Mille are frequently counterfeited and sold on city streets and online. With technological advancements, many non-luxury and inexpensive quartz watches are also commonly counterfeited.

<span class="mw-page-title-main">Trademark</span> Trade identifier of products or services

A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies a product or service from a particular source and distinguishes it from others. A trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. Trademarks used to identify services are sometimes called service marks.

<i>Shanzhai</i> Chinese term for counterfeit goods

Shanzhai is a Chinese term literally meaning "mountain fortress" or "mountain camp", whose contemporary use usually encompasses counterfeit, imitation, or parody products and events and the subculture surrounding them. Shanzhai products can include counterfeit consumer and electronic goods, which can involve the imitation and trademark infringement of brands and companies. The term's modern usage grew around 2008 when counterfeit smartphones reached their greatest domestic use. Today, some relate the term with grassroots innovation and creativity rather than with falsehood or imitation.

<span class="mw-page-title-main">Fulgor Milano</span>

FULGOR Milano is a registered trademark of Meneghetti S.p.a., an Italian manufacturer of premium major appliances and ceramic glass grills. Fulgor's global headquarters are located in Rosa, Italy; near Bassano Del Grappa in Italy's Veneto Region. The company's products compete with those made by companies Sub-Zero, Bosch, Thermador, Dacor, Miele, Viking Range, or Smeg.

Counterfeit consumer goods—or counterfeit, fraudulent, and suspect items (CFSI)—are goods, often of inferior quality, made or sold under another's brand name without the brand owner's authorization. The colloquial terms knockoff or dupe (duplicate) are often used interchangeably with counterfeit, although their legal meanings are not identical.

<span class="mw-page-title-main">Brand protection</span>

Brand protection is the process and set of actions that a right holder undertakes to prevent third parties from using its intellectual property without permission, as this may cause loss of revenue and, usually more importantly, destroys brand equity, reputation and trust. Brand protection seeks primarily to ensure that trademarks, patents, and copyrights are respected, though other intellectual property rights such as industrial design rights or trade dress can be involved. Counterfeiting is the umbrella term to designate infringements to intellectual property, with the exception of the term piracy which is sometimes (colloquially) used to refer to copyright infringement.

<span class="mw-page-title-main">Supreme (brand)</span> American skateboarding lifestyle brand

Supreme (səˈpriːm) is an American clothing and skateboarding lifestyle brand established in New York City in April 1994. Supreme is recognized for its influence on streetwear culture, with products that cater to skateboarding and urban fashion trends. The company makes skateboards in addition to clothing and accessories. The red box logo with "Supreme" in white Futura Heavy Oblique is thought to be largely based on Barbara Kruger's art. VF Corporation, a US-based apparel and footwear company, bought Supreme for $2.1 billion in December 2020.

<span class="mw-page-title-main">Trademark infringement</span> Violation of trademark rights

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees. Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, especially in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark. In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

<i>Tiffany (NJ) Inc. v. eBay Inc.</i> American legal case

Tiffany (NJ) Inc. v. eBay Inc. 600 F.3d 93, is a United States Court of Appeals for the Second Circuit case in which plaintiff Tiffany & Co. filed the complaint, first in 2004, alleging that eBay constituted direct and contributory trademark infringement, trademark dilution, and false advertising since it facilitated and advertised counterfeit Tiffany jewelries on its online market. On July 14, 2008, the District Court for S. D. N. Y. decided in favor of eBay on all claims. Tiffany appealed these decisions to the Second Circuit. The court affirmed the judgment of the district court with respect to the claims of trademark infringement and dilution. The false advertising claim was returned to the district court for further processing, which was then ruled in favor of eBay.

In Canada, passing off is both a common law tort and a statutory cause of action under the Canadian Trade-marks Act referring to the deceptive representation or marketing of goods or services by competitors in a manner that confuses consumers. The law of passing off protects the goodwill of businesses by preventing competitors from passing off their goods as those of another.

<i>Rosetta Stone Ltd. v. Google, Inc.</i> U.S. court decision

Rosetta Stone v. Google, 676 F.3d 144 was a decision of the United States Court of Appeals for the Fourth Circuit that challenged the legality of Google's AdWords program. The Court overturned a grant of summary judgment for Google that had held Google AdWords was not a violation of trademark law.

<i>Il Post</i> Italian online newspaper

Il Post is an Italian online daily newspaper, founded and directed in 2010 by Luca Sofri. The editorial staff includes journalists Arianna Cavallo, Francesco Costa, Luca Misculin, Elena Zacchetti, Giulia Balducci and Emanuele Menietti, as well as contributions from Luca Sofri and a number of other collaborators. The business model is based on revenue from advertising, since reading the newspaper is free and requires no registration; the newspaper is also sponsored by a group of investors of whom the main partner is the Banzai company, an Italian Internet holding company that controls the graphic design, technological aspects and advertising revenues.

<span class="mw-page-title-main">Italian Sounding</span> Marketing phenomenon

Italian Sounding is the marketing phenomenon consisting of words and images, colour combinations, and geographical references for brands that are evocative of Italy to promote and market agri-food products that have nothing to do with Italian cuisine. The phenomenon is described by the Office of the Ministry of Economic Development (MISE) called Directorate General for the Protection of Industrial Property – Italian Patent and Trademark Office (DGTPI-UIBM).

References

  1. ↑ "Supreme Italia: story of a 'legal fake'".
  2. ↑ "Il caso "Supreme": dall'imitazione alla concorrenza parassitaria". 29 June 2017.
  3. ↑ "The Story Behind Supreme's Fake Italian Brand - Highsnobiety". 19 April 2018.
  4. ↑ "Store Managers Weigh in on the "Legal Fake" Supreme Epidemic That's Spreading in Italy". 26 October 2016.
  5. ↑ "Fuck Em all'italiana: il caso di Supreme Barletta". 21 November 2016.
  6. ↑ "Il Caso SUPREME di Barletta e lo strano fenomeno dei Legal Fake". www.superflylab.com. 22 December 2017.
  7. ↑ Three Judgments from Tribunale di Milano: January, 26th 2017; April, 20th 2017; January, 26th 2018
  8. ↑ "Tribunal document" (PDF). www.giurisprudenzadelleimprese.it. 20 April 2017.
  9. ↑ "Supreme Italia - The case of "parasitic competition"".
  10. ↑ "Supreme Wins Lawsuit Against Italian Counterfeit". 19 April 2018.
  11. ↑ "Supreme Wins Counterfeit Legal Battle in Italy". 25 January 2018.
  12. ↑ "BOY London Italia - Phenomenology Of The Legal Fake Made In Barletta".
  13. ↑ "Virgil Abloh's Pyrex Vision Brand Is Still Alive - Highsnobiety". 19 April 2018.
  14. ↑ "Kith NYC Made in Barletta - the new legal fake".
  15. ↑ "Il fenomeno dei LEGAL FAKE in Italia (attenzione ai marchi Supreme, Pyrex, Boy London, Kith, Thrasher)". 2 June 2017.
  16. ↑ Chiosa, R. (2013). "Celebrity Endorsement in Fashion Print Advertising". EuroEconomica. 32 (1).
  17. ↑ G. Larsen, R. Lawson, ‘Consumer Rights: An Assessment of Justice’, Journal of Business Ethics, February 2013, Volume 112, Issue 3, pp 515–528
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