Is selling copy/fake/counterfeit/replica goods legal?

prowla

(I know it seems like a daft question, but...)

Is it legal to sell a copy/replica item which bears an unlicensed manufacturer's registered trademark logo provided that (a) you say it is not genuine, and/or (b) you cover the logo up in pictures?

Which laws cover this?

Pollycat

Quick Google found this (which was answering a question from a buyer's perspective):

If the seller refuses to give you a refund

Sometimes sellers argue that items were obviously fake because they were very cheap. They can say you must have known it wasn’t the real thing and use that as a reason not to give your money back. However, they’re breaking the law by selling fake items and your legal rights still apply.

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/report-fake-or-counterfeit-goods/

Or here:

It's a criminal offence for anyone to sell fake or counterfeit goods.

https://www.which.co.uk/consumer-rights/scams/fake-goods

Coincidentally, I've been clearing handbags out and have some fakes I bought from India - Radley, Gucci, Jimmy Choo, Mui Mui etc - and was considering donating them to my local hospice charity shop but I don't think I'll bother.

user1977

Depends what you mean by "legal". If you've made clear to your buyer that the item is a replica then obviously they can't then complain they were duped. If you're breaching the intellectual property of whoever owns the brand name or design etc, they might take action against you.

Being more specific might help us give better advice!

Pollycat

user1977 said:

Depends what you mean by "legal". If you've made clear to your buyer that the item is a replica then obviously they can't then complain they were duped. If you're breaching the intellectual property of whoever owns the brand name or design etc, they might take action against you.

Being more specific might help us give better advice!

If it

prowla said:

bears an unlicensed manufacturer's registered trademark logo

wouldn't it be fraud?

user1977

Pollycat said:

user1977 said:

Depends what you mean by "legal". If you've made clear to your buyer that the item is a replica then obviously they can't then complain they were duped. If you're breaching the intellectual property of whoever owns the brand name or design etc, they might take action against you.

Being more specific might help us give better advice!

If it

prowla said:

bears an unlicensed manufacturer's registered trademark logo

wouldn't it be fraud?

Who's being defrauded? The trademark holder's right in action is for breach of the trademark rather than fraud. If a buyer was being duped into thinking it's a genuine article then yes it could be fraud. But that doesn't sound like the case here.

pbartlett

I think you need to ask someone with legal training for a definitive answer but this is how I always understood it to be. Take the case of a fake Mulberry bag:

1. if the bag is designed to look exactly like the genuine article, has the Mulberry disk, Mulberry serial numbers and Mulberry labels etc then it is a counterfeit bag and illegal to sell.

2. if the bag does not have the Mulberry bits, and is designed to resemble but maybe not exactly match the genuine bag then it is a knock-off and you can sell it (as long as you don't describe it as a Mulberry bag of course)

Aldi do it all the time. They would never do (1) above (eg sell their own corn flakes in a Kellogg's box) but they do (2) by selling their own corn flakes in a box that closely resembles the Kellogg's box but doesn't have Kellogg's on it.

prowla

pbartlett said:

I think you need to ask someone with legal training for a definitive answer but this is how I always understood it to be. Take the case of a fake Mulberry bag:

1. if the bag is designed to look exactly like the genuine article, has the Mulberry disk, Mulberry serial numbers and Mulberry labels etc then it is a counterfeit bag and illegal to sell.

2. if the bag does not have the Mulberry bits, and is designed to resemble but maybe not exactly match the genuine bag then it is a knock-off and you can sell it (as long as you don't describe it as a Mulberry bag of course)

Aldi do it all the time. They would never do (1) above (eg sell their own corn flakes in a Kellogg's box) but they do (2) by selling their own corn flakes in a box that closely resembles the Kellogg's box but doesn't have Kellogg's on it.

Using the case of this Mulberry bag example, the question is almost 1 there, but:

• The bag is designed to look exactly like the genuine article, has the Mulberry disk, Mulberry serial numbers and Mulberry labels, and is of similar quality, but you say it is a replica.
  

prowla

Pollycat said:

Quick Google found this (which was answering a question from a buyer's perspective):

If the seller refuses to give you a refund

Sometimes sellers argue that items were obviously fake because they were very cheap. They can say you must have known it wasn’t the real thing and use that as a reason not to give your money back. However, they’re breaking the law by selling fake items and your legal rights still apply.

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/report-fake-or-counterfeit-goods/

Or here:

It's a criminal offence for anyone to sell fake or counterfeit goods.

https://www.which.co.uk/consumer-rights/scams/fake-goods

Coincidentally, I've been clearing handbags out and have some fakes I bought from India - Radley, Gucci, Jimmy Choo, Mui Mui etc - and was considering donating them to my local hospice charity shop but I don't think I'll bother.

Yes - it seems like a lot of UK Consumer Protection law is there to protect the buyer from being sold a fake when they thought it was the real thing, which is good.

However, the scenario I'm interested in is the other side of the transaction, ie. selling (or them for sale) these goods and openly saying they are replicas.

A good example would be you putting up your fake Radley handbag for sale, described as "Indian replica Radley handbag".

Though you are being open with regards to its bonafides, is it still (a) a counterfeit, and (b) illegal to sell?

The Which link states "It's a criminal offence for anyone to sell fake or counterfeit goods.", they don't give the references as to what says it is illegal, ie. what laws are in play, and indeed what the legal definitions of "fake" and "counterfeit" are.

user1977

prowla said:

Pollycat said:

Quick Google found this (which was answering a question from a buyer's perspective):

If the seller refuses to give you a refund

Sometimes sellers argue that items were obviously fake because they were very cheap. They can say you must have known it wasn’t the real thing and use that as a reason not to give your money back. However, they’re breaking the law by selling fake items and your legal rights still apply.

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/report-fake-or-counterfeit-goods/

Or here:

It's a criminal offence for anyone to sell fake or counterfeit goods.

https://www.which.co.uk/consumer-rights/scams/fake-goods

Coincidentally, I've been clearing handbags out and have some fakes I bought from India - Radley, Gucci, Jimmy Choo, Mui Mui etc - and was considering donating them to my local hospice charity shop but I don't think I'll bother.

The Which link states "It's a criminal offence for anyone to sell fake or counterfeit goods.", they don't give the references as to what says it is illegal, ie. what laws are in play, and indeed what the legal definitions of "fake" and "counterfeit" are.

They mean if you assume that there is an aggrieved buyer who hadn't been aware it was a counterfeit.

As I said above, the risk is really the brand taking action against you.

theoretica

prowla said:

pbartlett said:

I think you need to ask someone with legal training for a definitive answer but this is how I always understood it to be. Take the case of a fake Mulberry bag:

1. if the bag is designed to look exactly like the genuine article, has the Mulberry disk, Mulberry serial numbers and Mulberry labels etc then it is a counterfeit bag and illegal to sell.

2. if the bag does not have the Mulberry bits, and is designed to resemble but maybe not exactly match the genuine bag then it is a knock-off and you can sell it (as long as you don't describe it as a Mulberry bag of course)

Aldi do it all the time. They would never do (1) above (eg sell their own corn flakes in a Kellogg's box) but they do (2) by selling their own corn flakes in a box that closely resembles the Kellogg's box but doesn't have Kellogg's on it.

Using the case of this Mulberry bag example, the question is almost 1 there, but:

• The bag is designed to look exactly like the genuine article, has the Mulberry disk, Mulberry serial numbers and Mulberry labels, and is of similar quality, but you say it is a replica.
  

In which case it is Mullberry who have the case against you (and if you use a selling venue such as Ebay) - backed up by the intellectual property laws (trademarks, design rights, copyright).  They have done all the design work but aren't getting any money.  If it were OK for you to sell it as a replica, then the same would apply to everyone else, including the replica makers.

Counterfeit goods are removed from circulation and either destroyed, or *all* branding removed by charity - it is not OK to just say they are fake.  See for instance https://www.bbc.co.uk/news/uk-16058275

bris

It's definitely illegal to sell counterfeit good even if you admit they are counterfeit. In fact most people know they are counterfeit even if you don't tell them. Trading standards prosecute 100% of the offenders they catch.

It's above the brands head, they don't control who get prosecuted but they do have the right to sue you personally as well as being charged by trading standards.

So Op the answer is yes it's a criminal offence to knowingly sell fake goods. 

An individual who sells a one off thinking it's a genuine item may escape prosecution, but a person selling multiple items can't use that excuse as ignorance is no defence as far as the law goes.