Counterfeit consumer goods
As piracy, counterfeiting or piracy business with copycat products of one original goods confusingly referred to, which are made with the aim to be similar. In this case, trademark law or antitrust laws are violated. Often this goes hand in hand with piracy violations of copyrights, registered designs, utility models, patents and other rights of intellectual property and intellectual property law.
Is forged in all areas: software, watches, clothing, medicines, car parts and even complete vehicles. Also spare parts of machinery and capital goods - even aircraft - are copied.
Measures against piracy and counterfeiting provide product protection and product protection.
- 6.1 sources
- 6.2 Literature
- 6.3 External links
Definition of piracy
There are four types of copies:
- The slavish forgery tried to copy the original exactly. The packaging and the brand name are often the same. For cosmetic or pharmaceutical products, the ingredients may be identical.
- Plagiarism wear a slightly modified brand name, such as anagrams as McDnoald 's or visually similar as SQNY. Some of these product names on slavish fakes and partly on products that are available from the original manufacturers do not (or not so ). In China, the copy culture is known as Shanzhai ( Shan Zhai ).
- In classic fakes an identical packaging and the manufacturer's name will be used. The ingredients, processed materials and / or processing, however, are usually ( but not necessarily) inferior and sometimes not available or harmful. (See: Wine forgery )
- Bootleg copy and Black are colloquial names for illegal copies of copyrighted material. The names usually refer to items in the media industry, can be reproduced by photoengraving. (See Copyright )
It affects almost all sectors of the automotive and apparel over the music even in the pharmaceutical industry. In a gray zone between legality and illegality move producers supplying copies of products from other manufacturers under their own brand name. It is often disputed whether it is piracy, piracy, it is not. Especially in the area of products whose value is to a considerable extent in the aesthetic value, which is widely used, eg in clothing. When the shape of these products is not protected by the taste or utility model protection, are generally no concerns, otherwise - in stock of shape design protection - try the manufacturers often to circumvent legal recourse by slight changes of form. Basically legally are generic ( me-too products); these resemble an original. If the similarity is too large, then the me-too product is also plagiarism. Often, even experts find it difficult to predict the outcome of relevant court cases.
A great deal of plagiarism comes for many years from the People's Republic of China and Thailand, as the ( published by the Federal Ministry of Finance) statistics of seizures of duty assigned.
Legislation
Although there is no clear, consistent and clear definition for delimiting the phenomenon piracy, specialists agree that piracy on a commercial and criminal violated rights. Product or brand piracy in Germany punishable with imprisonment of up to three years or a fine (§ § 106, § 107 and § 108 of the Copyright Act ). The threat of punishment after the § 143 Mark provides for a prison sentence of up to three years or a fine, the commercial action up to 5 years or a fine for a simple offense. The trademark violation is punishable exclusively in commercial transport (trade ). In most commercial cases, however, the criminal liability under the Copyright Act and the Trademark recedes behind the fraud offenses. By the counterfeits are often offered as "Original Goods ", an illusion is created in order to obtain a financial advantage. The penalties for fraud are punishable by up to five years or a fine, while commercial fraud imprisonment for not less than 6 months and up to 10 years.
The EU Commission has recently presented a draft directive, with the penalties for piracy are to be matched in the EU (see links below).
Both acquisition and possession of counterfeit goods for private use is not illegal.
Effects
In the era of confrontation was a strict export regime especially for technical goods in countries of the Eastern bloc. This led to extensive reconstruction experiments of microprocessors, such as the Zilog Z80 and the first 80x86 processors from Intel. Even with slot machines all devices have been reconstructed, the electronics have been therefor partially altered to bypass the copy protection in the game ROMs. In recent years, piracy has become a worldwide phenomenon. Entire industries thrive on the production of cheap copies. Nearly 100 million cases of product counterfeiting and piracy are determined annually at the external borders of the European Union.
According to the EU fall through piracy, illegal overproduction, parallel and re-imports now already 10 % of world trade in fakes or forgeries, which is equated to an international loss of over 300 billion euros. In Germany (according to VDMA) affects approximately two thirds of the producers of capital goods from the problem of illegal copies.
The impact on the labor market are such Calculations serious. Are lost due to piracy in Germany alone, according to estimates by the Ministry of Justice annually about 50,000 jobs. In Europe as a whole will be affected even total 300,000 jobs. The DIHK estimates the economic damage caused by product and brand piracy in Germany alone at 30 billion euros. To the destruction of 70,000 estimated job comes in recent years. In addition to lost revenue, those involved must in the worst case even take Product Liability Litigation for counterfeit products in purchasing. In addition, poor quality counterfeits the reputation of a brand cause irreparable damage if the quality expectations of the buyers are not satisfied. Sometimes, however, also have copies of a supposedly higher quality than the original. They are therefore a security risk, because the original has often a well-defined quality to serve as a breaking point in the system and can thus protect against major damage or accidents.
The actual damage caused by counterfeiting is difficult to quantify. It can not be set equal to the turnover of the counterfeiters, as is done in some of the studies. Sometimes it is larger, sometimes smaller. For example, the extent of illegal copies of operating system software has considerably strengthened the position of certain software companies in poorer countries and thus only created the market on which they could then later generate sales. Sometimes counterfeiting is seen as an inevitable part of the economic development of these countries.
A survey of the VDMA revealed (Association of German Machinery and Plant ) among its members in March 2010 that the German Machinery and Plant estimated 6.4 billion euros lost by piracy, compared with the year 2008, an increase of eight percent. About 28 percent of respondents estimated their revenue losses by piracy to more than five percent.
Measures against product piracy
Engineering measures
The usable against piracy protection technologies or technical securing means, such as holograms, security labels ( VOID films, documents, films), micro color codes, digital watermarks, copy detection and data matrix, DNA or nano technologies, RFID, etc., are highly dependent on the characteristics of the market and the customers for whom the products are offered. There have been further developed on cryptographic codes based methods that make each copy of a product or a replacement part, unique.
For some products, it is the customers, especially as private consumers care if he buys a counterfeit, a fake or an original. This is for example the case if the price difference between an original and a counterfeit or a forgery the loss in terms of functionality, quality, reliability and service life outweighs (eg, fake rolex watches from street vendors at your destination ). Often it is only by the value of the product as a status symbol, so the outward effect achieved by the possession of a product of a particular brand. In this case, if necessary measures are effective, either improve the control over the distribution channels, it is possible that, for example, the retailer check if he has received an original product, or measures that prevent copying of the products or very complex and therefore economically unattractive making.
Increasingly dive for plagiarism and counterfeiting, the use or consumption exposes the user or uninvolved third party risks and health hazards. Many institutions try to sensitize private and commercial customers for the topic or be informed about how they can distinguish originals from fakes. Specially for information about the possibilities of technological protection measures, the VDMA has published in 2010 a movie.
Etc. Discover and seizures of counterfeit at trade fairs
Most counterfeits are produced in China. Political interventions remain mostly ineffective. Many businesses damaged, therefore, attempt to interfere with the marketing of plagiarism by example looking at trade fairs for plagiarism in Chinese exhibitors. If they find plagiarism, let this, as well as the brochures seize. Often, the investigating authorities impose fines against the exhibitor.
A survey of the VDMA revealed (Association of German Machinery and Plant ) among its members in March 2010 that 53 % of companies already like plagiarism had discovered at trade shows. Often its members, the industry associations help to combat piracy. Messe Frankfurt support since 2006 (and the first trade fair worldwide) Exhibitors in the fight against counterfeiting and piracy. Also, the Exhibition and Congress Committee of German Industry (AUMA ) is active against piracy.
The Federal Ministry of Education and Research has launched a research initiative against piracy in January 2008 and supports numerous research projects.
About confiscations on measuring the media reports regularly.
By executive body is the customs; This has, inter alia, a "Central Intellectual Property " in Munich [ www.ipr.zoll.de ) and operates ZGR- online ( Centralized database system for protecting intellectual property rights online) .. Industrial property rights are especially Trademarks, designs, copyrights or patents.
Order to fight better against piracy, more and more manufacturers protect the design of their products through a design.
Piracy protection of spare parts
Piracy not only affects the consumer or textile industry. Long the problem has arrived in the capital goods industry. Notably, replacement parts are affected. The imitation of spare parts offers an optimal testing ground to try out in the piracy and evolve due to the low cost structure risk.
The manufacturers of capital goods see themselves in the implementation of a successful piracy protection for their spare parts with two basic problem areas faced. The first problem area is characterized by the general structure of the market for spare parts. Worldwide heterogeneous markets and a variety of spare parts, suppliers, customers, vendors and competitors make it difficult for OEMs increasingly to make a transparent assessment of the piracy threat for its own spare parts. The second problem area is characterized by the lack of use and the lack of knowledge about appropriate spare parts specific protection measures. These include, for example, measures such as de- standardization, functional integration, quality differentiation, reverse logistics, organization of the supplier value or introduction of a second brand.
For these reasons, a transparent analysis of the respective parts program for potential piracy threats is for a successful anti-piracy protection of spare parts necessary for one and secondly, a specific selection of spare parts specific protection measures.
Seizure by the customs authority
Articles that are in the piracy and counterfeiting suspect may be seized under certain conditions by the customs authorities. Since this seizure is carried out regularly as part of the import inspection at the border, the term of this border seizure or customs seizure is often used. The seizure is directed against " goods suspected of infringing certain intellectual property rights, and ... violate the infringed such rights ".
Legal situation
To complicate piracy and counterfeiting in the European Union has the rights holder to the importation of suspect goods to hinder or even prevent them altogether. This is based on various guidelines of the European Union. In § 142a and § 142b Patent Act ( IPA), these guidelines have been implemented in national law. In trademark law, copyright law, design law or Plant Variety Protection Act can be found plus other national regulations.
Application Procedure
Is a prerequisite for seizure by customs authorities, either:
- A community property rights (Community trade mark, Community Design, ...) or
- Kind of national protection.
Since this is the seizure by the customs authorities to an application process, the rights holder must continue to submit an application. If the request is a community property right based on the customs authority may at which the request was made also grant the application for all other Member States. Which the application is based only national property rights, so you need a separate application be made for each affected country. In both cases, however, Community-wide uniform, application, the same may be used. The application of the customs clear instructions should be given as to how plagiarism should be distinguished from the original products.
Effect
If the customs authorities of the suspicion of counterfeiting and piracy and appropriated an application for confiscation is present, it sets the " release of goods " made or there is a " detention of goods ". The customs authorities consider suspicious goods on for 10 working days. Within this period, the rights holder has either take legal action against the owner or supplier of the suspect goods or to apply a simplified destruction procedures for suspect goods. This " suspension of release " or " detention of goods " is not only communicated to the respective companies, but it is also the applicant for or holder of the goods informed. Against the actions of the customs authority is the applicant for or holder of the goods concerned then go to court.
Public relations
To raise public awareness of the problem and to denounce blatant plagiarists, since 1977, the negative award of Plagiarius is awarded. Once a year, the company received him particularly brazen counterfeiting. It is awarded by an independent club in the meantime, the Plagiarius.
Partial set company -specific measures of corporate communications successfully against piracy one. An important issue is often caused by piracy damages and successful actions against counterfeiters that are discussed for example, in the press media. In a supported by ZVEI, the GVU and numerous other associations study see 60 % of the company also issues such as education and risk prevention, particularly for customers, as a central point for piracy defense.
Term
The English translation of piracy is counterfeiting, the fight is called Anti -Counterfeiting. In English there for smuggling goods the term bootleg (English for the bootleg ). The use of the term bootleg for smuggling goes back to the days of Prohibition in the United States and originally referred to the illegal sale of liquor. He was later also applied to other contraband goods. The term bootleg is also ( and mainly in German ) used for illicit concert recordings.
The figure of the pirate is being exploited because of their symbolic power again and again, to stigmatize, for example, violation of the copyright and trademark law in the broad public eye. For this reason, the media and software industries speaks today through publicity campaigns against unlawful copying of music and application programs, for example, of software piracy. In allusion to this controversial rhetoric of media and software industries Stephan Eissler designs in return the "modern buccaneer " as a rhetorical device to prevent abuse of copyright and trademark law ( eg in connection with dubious warnings ) as though legal but morally reprehensible act to brand, and to indicate possible social consequences.