Counterfeit products are goods that imitate original products and infringe intellectual property rights, meaning they use another company’s registered trademark, design, or other protected feature without the permission of the rights holder. The production, import, storage, offering for sale, and distribution of counterfeit goods are prohibited and may result in both civil and criminal liability.
In addition to being illegal, counterfeit products may contain elements that can harm health or property. By using counterfeit products, individuals may endanger their own health and well-being as well as that of their loved ones. On a broader societal level, the black market for counterfeit goods finances organised crime and undermines fair business practices.
How to identify a counterfeit product?
In determining whether a product is counterfeit, the assessment and information provided by the rights holder of the original product are decisive in establishing whether the product infringes intellectual property rights. It is difficult to conclusively determine solely on the basis of visual inspection whether a product is counterfeit; however, several indicators may give reason to suspect that a product is counterfeit.
What warning signs should you look out for?
In general, there are a number of indicators that may suggest a product is counterfeit. Counterfeiting most commonly targets well-known brands, but counterfeit goods can also be found among less well-known brands, niche products, and even low-cost brands.
- The price may be significantly lower than usual.
- The product or packaging contains spelling mistakes.
- The product lacks proper packaging.
- The quality of the packaging or product is poor.
- The product has a strong chemical smell.
When such signs are detected, it is advisable to exercise caution and request additional information about the product. Contacting the original manufacturer or an authorised distributor can help clarify the situation.
Why are counterfeit products a problem?
Counterfeit trade harms fair business practices, reduces state tax revenue, and may be linked to organised crime.
Counterfeit products may contain dangerous or unregulated substances (e.g. cosmetics, medicines), be unsafe (e.g. electronics, chargers, toys), or break easily.
Where to turn with questions related to counterfeit goods?
As the protection of intellectual property is primarily the responsibility of the rights holder, suspected counterfeit products should first be reported to the rights holder or to the importer or authorised distributor of the original goods. The rights holder is the party most interested in and entitled to take steps to limit the spread of counterfeit products. It is common practice for rights holders to take legal action against manufacturers, importers, distributors, and resellers of counterfeit goods. This includes sending warning and cease-and-desist letters, filing claims in court to stop the infringement and seek damages, and, where necessary, applying for customs or criminal enforcement measures.
Companies manage the registration and enforcement of their intellectual property rights independently or through their representatives. One of the professions specialising in intellectual property protection is that of patent attorneys. The professional organisation for patent attorneys in Estonia is the Estonian Chamber of Patent Attorneys.
In certain cases, public authorities can also assist consumers in resolving issues related to counterfeit goods.
If a product is advertised and sold as an original but is in fact counterfeit, it constitutes non-conformity with the contract. The seller is obliged to remedy the situation, i.e. refund the money or replace the product. Selling a counterfeit product as an original misleads the consumer. If there is a suspicion that a product is counterfeit, the consumer should first contact the seller. As a rule, the seller must provide a written response within 15 days.
If a consumer has knowingly purchased what was presented as an original product but later discovers it is counterfeit and the dispute cannot be resolved by agreement between the parties, the consumer may turn to the Consumer Disputes Committee to protect their rights. For low-value items (below 30 euros), the committee has the right to refuse to take the case if resolving it would not contribute to establishing significant practice.
If the product has been purchased from another European Union Member State, the consumer should also immediately contact the seller in writing, include photos of the product’s defects, and provide proof of purchase. The consumer may request a refund or replacement of the product. If the seller does not respond or refuses, the consumer can turn to the EU Consumer Advice Centre (ECC) of the Consumer Protection and Technical Regulatory Authority, which will communicate with the respective centre in the other country and assist in resolving the dispute.
If a counterfeit product has been purchased from a private individual, it is important to note that consumer protection rules do not apply, as a private individual is not acting in the course of business or professional activity and therefore is not subject to the obligations of a trader. This is a transaction between two private persons, and in case of problems, the consumer can only turn to the courts.
If a counterfeit product has been sold, in addition to resolving the consumer’s complaint, it is important to ensure that the sale of counterfeit goods is stopped immediately. The sale of counterfeit goods should be reported to the rights holder’s representative and to the police at [email protected].
If there is suspicion of goods infringing intellectual property rights in trade with third countries, customs can be informed 24/7 via the free hotline 800 4444 or by email at [email protected].
For businesses: what to do if you notice an intellectual property infringement?
If you discover that your company’s products or trademark are being used without permission and counterfeit products are being sold, it is important to act quickly and systematically. First, ensure that your trademark or design is properly protected, i.e. registered in the relevant register. Counterfeiting infringes intellectual property rights and is prohibited – a business has the right to use all available civil law remedies, including prohibiting the production, import, and sale of such goods and claiming compensation for damages. If no agreement is reached out of court to stop the infringement and compensate for damages, the dispute is resolved by a court in civil proceedings. In Estonia, all intellectual property disputes fall under the jurisdiction of Harju County Court. In addition, infringement of intellectual property rights may also constitute a criminal offence.
As a first step, action should be taken where the infringement occurs. If counterfeit products are being sold on an online platform, the platform’s notification and takedown mechanism can be used. Notices submitted to platforms should refer to your rights, such as a registered trademark, and include as precise information as possible about the infringement. Under European Union law, platforms are required to respond to such notices and, where necessary, remove unlawful content.
At the same time, evidence should be collected and preserved. This may include screenshots of listings, links, seller details, and, if necessary, purchasing a sample product. Evidence is essential both when approaching supervisory authorities and in potential court proceedings.
In matters related to the import of counterfeit goods into Estonia from third countries and their export to third countries, the competent authority is the Estonian Tax and Customs Board, which supervises the movement of goods and, consequently, their entry into the market. The rights holder may apply for customs intervention to prevent the import and export of counterfeit goods and thereby limit their distribution. If the infringement is intentional or extensive, it may constitute a criminal offence, in which case the matter should be referred to the Police and Border Guard Board.
Effective protection of rights requires that intellectual property be properly protected in advance. Registering a trademark or design with the Estonian Patent Office or at the European Union level with the European Union Intellectual Property Office (EUIPO) provides the rights holder with a clear legal basis for enforcing their rights. Without registered industrial property rights, responding to infringements is significantly more difficult. Professional legal advisers, such as patent attorneys (see the Estonian Chamber of Patent Attorneys), can assist in developing an intellectual property protection strategy and in the registration process.
In addition to registration, it is important to continuously monitor the market and respond quickly to infringements. The earlier an infringement is detected and addressed, the more effective the protection of rights and the lower the potential damage.
In summary, when counterfeit goods are detected, a business should first act within the sales channel, collect evidence, inform the rights holder, and, if necessary, notify the Estonian Tax and Customs Board and the Police and Border Guard Board, and use legal remedies to protect its rights.
References
Services
- Application to the Consumer Disputes Committee
- Submitting a tip to the Estonian Tax and Customs Board
- Submitting a tip to the Police and Border Guard Board
- Trademark registration and protection