Keepin' It Real: It's National Anti-Counterfeiting Month

Last month, Senators Christopher Coons (D-Del.) and Chuck Grassley (R-Iowa), introduced a resolution designating July as "National Anti-Counterfeiting and Consumer Education and Awareness Month" (S. Res. 736). As counterfeits flood the market, totaling almost $3 billion in estimated retail value in 2023 alone, the resolution aims to increase anti-counterfeiting awareness for consumers and businesses alike.

In 2023, the United States seized over 23 million counterfeit goods, with an estimated retail value of $2.76 billion—nearly double the reported amount and value from 2020. Many things have contributed to this increase, including the continued expansion of e-commerce and a lack of consumer awareness.

The increased breadth and accessibility of product offerings on e-commerce platforms has provided counterfeiters the ability to hawk their wares with very little accountability. When shopping online, consumers cannot closely examine their purchases until after receipt. Consumers rely on brand recognition, statements made by the seller, and product photographs or descriptions to determine if a product is genuine. In many cases, however, e-commerce sites tend to group authentic and counterfeit products together under a general brand heading. Counterfeiters also frequently use brands' logos and authentic product photographs to help legitimize counterfeits, providing both the bad actor and their product with an aura of authenticity. In a bid to deter these practices, Congress introduced the "Stopping Harmful Offers on Platforms by Screening Against Fakes in E-commerce Act of 2023" (SHOP SAFE Act), which seeks to create contributory liability for e-commerce sites that knowingly sell fake goods. If enacted, the SHOP SAFE Act will likely require e-commerce sites to actively review how they currently organize available products and to more actively monitor and remove counterfeit products from their platforms. Counterfeit removal not only protects brands, but keeps consumers safe as well. Several million of the goods seized in 2023 were regulated commodities, including pharmaceuticals, consumer electronics and batteries, automobiles, firearms, and personal care items, that can pose serious health and safety risks, including death, when counterfeited.

Despite the rising ubiquity of counterfeits, brand owners have several tools to prevent counterfeits and educate consumers:

• A strong and targeted monitoring and enforcement program to identify and stop the unauthorized use of brands' intellectual property.
• Coordination with various regulatory agencies, each of which is intended to monitor and ensure the efficacy of trade. For example, the National Intellectual Property Rights Coordination Center is tasked with addressing counterfeit products. Brand owners are encouraged to report counterfeits to the Center. And, the recordation of copyright or trademark registrations with U.S. Customs and Border Protection—along with any other customs bureaus in countries where brand owners do business or manufacture products—can allow for the increased control and detainment of imported counterfeits.
• Investment in consumer education. Brand owners may consider posting easily accessible lists of authorized dealers, delineating clear methods for establishing the authenticity of goods, or providing information about any quality differences or safety risks associated with counterfeits on their websites or social media platforms. Listing authorized second-hand dealers also helps keep resale markets full of authentic products, especially with respect to luxury items.
• Crowd sourcing enforcement efforts. Offering to swap an inadvertently purchased counterfeit for the authentic item, or encouraging consumers who have been duped to report it to the National Intellectual Property Rights Coordination Center, the Better Business Bureau, the Consumer Product and Safety Commission, or the Federal Bureau of Investigations, are great ways to work with consumers, often the companies' biggest fans, to ensure their own protection.

National Anti-Counterfeiting Month is a great opportunity to launch increased monitoring, enforcement, and consumer education efforts. But most importantly, it's a call to action to keep products real.