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Intellectual property owners and lawful seizure of 'fake' property in the UK
AlAlbert
Posts: 48 Forumite
I'm posting this here as I don't know of anywhere more suitable. If you can suggest a better subforum here or a different forum entirely, please do let me know.
If anyone knows of a clear FAQ or digest of the relevant legislation I'd really appreciate a pointer to it.
We all know that HMRC, Trading Standards, or the Police sometimes seize (and sometimes destroy) counterfeit goods, but my question is not about such agencies who clearly have statutory authority to seize goods they believe to be counterfeit (and, I presume, to destroy goods proven to be counterfeit).
My questions are about private organisations (e.g. companies), specifically intellectual property owners themselves, seizing (and possibly damaging or destroying), on their own initiative, allegedly counterfeit goods belonging to other people without the permission of the owners of the goods. And so my questions are:
1) Is it lawful in the UK for an intellectual property owner (with no other special legal powers) to seize or retain someone's property without that property owner's permission if they believe that it is a counterfeit of their intellectual property?
2) Is it lawful in the UK for an intellectual propery owner (with no other special legal powers) to damage or destroy someone's property without that property owner's permission if they believe that it is a counterfeit of their intellectual property?
3) And, if either of these are lawful, what specific legislation provides for the authority?
Note that I have used the word "lawful" since I realise that retaining someone's property without their permission in this scenario is possibly not theft (since that would entail an element of dishonesty). Nevertheless, retaining, damaging, or destroying someone's property without their permission is usually not lawful (even if not explicitly illegal or criminal in all scenarios).
Two examples of the kind of thing I am talking about:-
(1) There is an ongoing urban legend about a person who takes an expensive watch such a Rolex to a dealer for repair and the dealer promptly smashes it with a hammer, saying that it's a fake. I have seen lots of people repeat this urban legend but I've found no evidence that it was ever true in the UK. Theoretically it could have happened and I am trying to find out whether or not there could or would be any lawful authority for it. (I note that in this case the dealer would be acting on the presumed behalf of the actual intellectual property owner).
(2) There are similar urban legends about people sending expensive watches back to the manufacturer (i.e. the intellectual property owner) for repair and the manufacturer saying that the watch is a fake and will be retained (i.e. seized) and destroyed (regardless of the wishes of the owner of the watch). Again, I have never found any evidence of this actually happening in the UK. As with the first example above, while it could in theory have happened, I am trying to find out whether or not there could or would be any lawful authority for the manufacturer either seizing or destroying the watch in this scenario in the UK. (I note that if the manufacturer told the owner of the watch that it might be seized or destroyed if found to be fake and the owner still sent the watch in then this might legitimise whatever the manufacturer did with it. My goal, as above, is to find out if the manufacturer/intellectual property owner has lawful authority in the UK to do what they like on their own say so without permission of the owner).
If anyone knows a specific answer to these questions or where I can find the answer I'd very much appreicate it. I know I could in theory read the primary legislation but, even then, it is conceivable that I would not realise the meaning of a particular section. Plus it would take a very long time and if someone's done the work before me it strikes me as more efficient to share.
If anyone knows of a clear FAQ or digest of the relevant legislation I'd really appreciate a pointer to it.
We all know that HMRC, Trading Standards, or the Police sometimes seize (and sometimes destroy) counterfeit goods, but my question is not about such agencies who clearly have statutory authority to seize goods they believe to be counterfeit (and, I presume, to destroy goods proven to be counterfeit).
My questions are about private organisations (e.g. companies), specifically intellectual property owners themselves, seizing (and possibly damaging or destroying), on their own initiative, allegedly counterfeit goods belonging to other people without the permission of the owners of the goods. And so my questions are:
1) Is it lawful in the UK for an intellectual property owner (with no other special legal powers) to seize or retain someone's property without that property owner's permission if they believe that it is a counterfeit of their intellectual property?
2) Is it lawful in the UK for an intellectual propery owner (with no other special legal powers) to damage or destroy someone's property without that property owner's permission if they believe that it is a counterfeit of their intellectual property?
3) And, if either of these are lawful, what specific legislation provides for the authority?
Note that I have used the word "lawful" since I realise that retaining someone's property without their permission in this scenario is possibly not theft (since that would entail an element of dishonesty). Nevertheless, retaining, damaging, or destroying someone's property without their permission is usually not lawful (even if not explicitly illegal or criminal in all scenarios).
Two examples of the kind of thing I am talking about:-
(1) There is an ongoing urban legend about a person who takes an expensive watch such a Rolex to a dealer for repair and the dealer promptly smashes it with a hammer, saying that it's a fake. I have seen lots of people repeat this urban legend but I've found no evidence that it was ever true in the UK. Theoretically it could have happened and I am trying to find out whether or not there could or would be any lawful authority for it. (I note that in this case the dealer would be acting on the presumed behalf of the actual intellectual property owner).
(2) There are similar urban legends about people sending expensive watches back to the manufacturer (i.e. the intellectual property owner) for repair and the manufacturer saying that the watch is a fake and will be retained (i.e. seized) and destroyed (regardless of the wishes of the owner of the watch). Again, I have never found any evidence of this actually happening in the UK. As with the first example above, while it could in theory have happened, I am trying to find out whether or not there could or would be any lawful authority for the manufacturer either seizing or destroying the watch in this scenario in the UK. (I note that if the manufacturer told the owner of the watch that it might be seized or destroyed if found to be fake and the owner still sent the watch in then this might legitimise whatever the manufacturer did with it. My goal, as above, is to find out if the manufacturer/intellectual property owner has lawful authority in the UK to do what they like on their own say so without permission of the owner).
If anyone knows a specific answer to these questions or where I can find the answer I'd very much appreicate it. I know I could in theory read the primary legislation but, even then, it is conceivable that I would not realise the meaning of a particular section. Plus it would take a very long time and if someone's done the work before me it strikes me as more efficient to share.
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Comments
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As far as I am aware, the answer to your questions 1 and 2 is 'no'.
Such actions appear to lean towards vigilante-ism. The responsibility for enforcing the law is with the responsible authorities, not the people the law protects.0 -
ThumbRemote wrote: »As far as I am aware, the answer to your questions 1 and 2 is 'no'.
Such actions appear to lean towards vigilante-ism. The responsibility for enforcing the law is with the responsible authorities, not the people the law protects.
In the examples the OP has given though the "Rolex" has been sent for repair either to the manufacturer or an authorised repair outlet. You can hardly expect the manufacturer to send a fake back.
Sending a fake for repair is really dumb.0 -
In the examples the OP has given though the "Rolex" has been sent for repair either to the manufacturer or an authorised repair outlet. You can hardly expect the manufacturer to send a fake back.
Sending a fake for repair is really dumb.
Some people may be unaware it is fake though.
Different brand I know but I have a small liking for Mulberry bags and was speaking to the SA in the shop one day, he said they quite regularly get people in asking them to send away their bag for repair and are shocked to be told they can't repair is because it is fake.
I could go on eBay now and point of ten fake mulberries no problem, but quite often I spot fakes on there and they have bids so someone is buying them probably under the impression it's genuine.The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.Bertrand Russell0 -
Apple confiscate fake items. We had a fake charger bought from a high street shop.
They confiscated it and replaced it....but that was only a charger I guess....0 -
gunsandbanjos wrote: »Some people may be unaware it is fake though.
There are no prizes for being stupid though.
High end consumer goods are expensive for a reason and that is to price them beyond the reach of most people. They are also sold through a strictly vetted and exclusive retail network. So if you don't buy from them you have to to think there is a very good chance it is fake.0 -
In the examples the OP has given though the "Rolex" has been sent for repair either to the manufacturer or an authorised repair outlet. You can hardly expect the manufacturer to send a fake back.
Sending a fake for repair is really dumb.
If they don't want to send it back, their only option is to pass it to the police. They can't just keep hold of someone else's property, to do so would be theft.0 -
tinkerbell28 wrote: »Apple confiscate fake items. We had a fake charger bought from a high street shop.
They confiscated it and replaced it....but that was only a charger I guess....
They have a policy now where you can have unofficial chargers replaced, you normally have to pay though I think its about £7 in the UK.
It all started after people in China were getting electrocuted by their iPhones due to using them whilst they were charging with a fake charger.0 -
1) Is it lawful in the UK for an intellectual property owner (with no other special legal powers) to seize or retain someone's property without that property owner's permission if they believe that it is a counterfeit of their intellectual property?
yes if the item is fake and proven to be fake then the intellectual property owner can retain the fake, they will also inform TS and the police, so you could expect a visit from either TS or the police to find where to got the fake from.
This also applies to repair centers if you send a fake for repair, then must retain this and inform the authorities and the intellectual property owner.0 -
They have a policy now where you can have unofficial chargers replaced, you normally have to pay though I think its about £7 in the UK.
It all started after people in China were getting electrocuted by their iPhones due to using them whilst they were charging with a fake charger.
This was before all that...they said charger is fake, we're going to destroy it. Here is another free.
TBF people moan about apple but I love them...they replaced my husbands iphone when I put it in the wash For free. 0 -
yes all about customer loyalty and that fact you will remain with them, rather than them just take the fake off you and send you on your way with a flea in your ear, which could see you go to one of their competitorstinkerbell28 wrote: »This was before all that...they said charger is fake, we're going to destroy it. Here is another free.
That was good of them, but you do know that just a rub with a cloth will clean a phone, you dont need to wash them as the components dont like water.tinkerbell28 wrote: »they replaced my husbands iphone when I put it in the wash For free.
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