Product piracy

from Wikipedia, the free encyclopedia

As piracy , counterfeiting or piracy business with copycat goods is called, which are produced with the aim of original goods confusingly to be similar. In doing so, trademark rights or competition law regulations are violated. Product piracy is often accompanied by infringements of copyrights , registered designs (previously: registered designs ), utility models , patents and other intellectual property and industrial property rights .

Counterfeiting occurs in all areas: software, watches, clothing, medicines, auto parts and even entire motor vehicles. Spare parts for machines and capital goods - even aircraft - are copied.

Street sales of unlicensed copies
A plagiarism of an adidas shoe (brand name “adibos”).

Measures against product piracy and counterfeiting describe product protection and product security .

Definition of product piracy

There are four types of copies:

  • The slavish forgery tries to exactly copy the original. The packaging and the brand name are often the same. In the case of cosmetic or pharmaceutical products , the ingredients may even be identical.
  • Plagiarism has a slightly changed brand name, e.g. B. Anagrams like McDnoald’s or optically similar like SQNY . Sometimes these product names are on slavish counterfeits and sometimes on products that are not (or not) available from the original manufacturer. In China, the copying culture is known as Shanzhai ( Shan Zhai ).
  • With classic counterfeits , identical packaging and the name of the manufacturer are used. The ingredients, the processed materials and / or the processing, on the other hand, are mostly (but not necessarily) inferior and sometimes nonexistent or harmful to health (see: Wine counterfeiting )
  • Pirate copy and black copy are slang terms for illegal copies of copyrighted material. The terms usually refer to products of the media industry, which means Reprotechnik reproduce leave. (See copyright infringement )

Almost all sectors are affected, from the automotive and clothing industries to the music and pharmaceutical industries . Manufacturers who sell copied products from other manufacturers under their own brand names move in a gray area between legality and illegality. It is often controversial whether it is product piracy, but it is not brand piracy. This is particularly widespread in the area of ​​products, the value of which lies to a considerable extent in the aesthetic value, e.g. B. in clothing. If the design of these products is not protected by design or utility model protection, there are usually no legal concerns, otherwise - if design protection exists - the manufacturers often try to circumvent legal handling by making minor changes to the design. In principle, imitation products (me-too products) are legal ; these resemble an original. If the similarity is too great, then the me-too product is also plagiarism. Even experts often find it difficult to predict the outcome of relevant legal proceedings.

A large part of the plagiarism has been coming from the People's Republic of China and Thailand for many years, as the statistics of the confiscation of customs published by the German Federal Ministry of Finance show.

Cases of unauthorized replicas of designer furniture, such as the Rietveld chair, represent a borderline case between product piracy and counterfeiting .

The English translation of product piracy is counterfeiting , the fight against it is called anti-counterfeiting . In English there is the term bootleg (English for the bootleg) for the smuggling of goods . The use of the term bootleg for smuggling goes back to the time of Prohibition in the USA and originally referred to the illegal sale of spirits . It was later applied to other contraband items as well. The term bootleg is also (and in German mainly) used for illegal concert recordings.

The figure of the pirate is repeatedly instrumentalized because of its symbolic power, for example to stigmatize violations of copyright and trademark law in the eyes of a broader public . For this reason, the media and software industry today speaks in the context of advertising campaigns against unlawful copying of pieces of music and application programs, for example software piracy . In allusion to this controversial stylistic device of the media and software industry, Stephan Eissler, in return, designs the "Modern Buccaneer" as a rhetorical figure to prevent the abuse of copyright and trademark law (for example in connection with dubious warnings ) as a legal, but nonetheless morally reprehensible act to brand, and to point out possible social consequences.

Socio-economic impact

In the era of bloc confrontation a strict was export regime especially for technical goods in countries of the Eastern bloc . This led to extensive attempts to replicate microprocessors such as the Zilog Z80 and the first 80x86 processors from Intel . Entire devices have also been recreated for gaming machines , with the electronics being partially modified to circumvent the copy protection in the game ROMs . In the past few years, product piracy has become a worldwide phenomenon. Whole branches of industry live from the production of cheap copies. Almost 100 million cases of product and brand piracy are detected every year at the external borders of the European Union .

According to the EU, product piracy, illegal overproduction , parallel and re-imports mean that 10% of world trade is plagiarized or counterfeited , which is equivalent to international damage of over 300 billion euros. In Germany (according to VDMA ) around two thirds of the manufacturers of capital goods are affected by the problem of illegal copies.

According to such calculations, the effects on the labor market are also serious. In Germany alone, the Ministry of Justice estimates that around 50,000 jobs are lost every year due to product piracy. A total of 300,000 jobs are said to be affected throughout Europe. The DIHK estimates the economic damage caused by product and brand piracy in Germany alone at 30 billion euros annually. In addition, an estimated 70,000 jobs have been destroyed in recent years. In addition to lost sales, those affected even have to accept product liability lawsuits for counterfeit products in the worst case. In addition, inferior quality counterfeits can cause irreparable damage to a brand's reputation if the buyer's quality expectations are not met. Sometimes, however, copies are also of a supposedly higher quality than the original. They become a security risk, because the original often has a precisely defined quality in order to serve as a predetermined breaking point in the system and thus to protect against major damage or accidents.

The actual damage caused by counterfeit products is difficult to quantify. It cannot be equated with the sales of counterfeiters, as is done in some of the studies. Sometimes it's bigger, sometimes it's smaller. For example, the proliferation of illegal copies of operating system software has considerably strengthened the position of certain software companies in poorer countries and thus created the market on which they could later generate sales. Sometimes counterfeiting is seen as an inevitable part of the economic development of such countries.

A survey by the VDMA ( Association of German Mechanical and Plant Engineering ) among its members in March 2010 showed that German mechanical and plant engineering lost an estimated 6.4 billion euros to product piracy, an increase of eight percent compared to 2008. Around 28 percent of those surveyed estimated their sales losses due to product piracy at over five percent.

legislation

Since January 1, 2014, Regulation (EU) No. 608/2013 on the enforcement of intellectual property rights by the customs authorities ("EU Product Piracy Regulation 2014") and the implementing regulation have regulated the measures to be taken by the customs administration to prevent that counterfeit products are imported from third countries and placed on the European Union market.

Procedure of the customs authorities according to Regulation (EU) No. 608/2013

Articles that are suspected of product piracy and brand piracy can, under certain conditions, be confiscated by the customs authorities . Since this seizure takes place regularly as part of the import control at the border, the term border seizure or customs seizure is often used for this . The seizure is directed against “goods which are suspected of infringing certain intellectual property rights and [...] which are known to infringe such rights”.

Application process

The prerequisite for seizure by customs authorities is either:

  • a community protection right (community trademark, community design, ...) or
  • a national property right.

The rights holder must submit a corresponding application. If the application is based on Community protection law, the customs authority to which the application was submitted can grant the application for all other Member States. If the application is based only on national property rights, a separate application must be made for each country concerned. In both cases, however, the same Community-wide uniform application form can be used. In the application, customs should be given clear instructions on how to distinguish plagiarism from original products.

effect

If the customs authorities suspect product or brand piracy and if an application for seizure has been approved, they suspend the “release of the goods” or “goods are withheld”. The customs authorities hold suspicious goods for 10 working days. During this time, the rights holder must either initiate legal action against the owner or supplier of the suspect goods or apply for a simplified destruction procedure for the suspect goods. This "suspension of the surrender" or "withholding of goods" is not only communicated to the respective right holder, but the declarant or owner of the goods is also informed. The declarant or owner of the goods concerned then has legal recourse against the measures of the customs authorities.

Germany

In § 142a and § 142b of the Patent Act (PatG) , Regulation (EU) No. 608/2013 was implemented in national law. Further regulations can also be found in the Trademark Act , Copyright Act , Design Act or Plant Variety Protection Act .

Although there is no clear, uniform and clearly delimiting definition for the phenomenon of product piracy, experts agree that product piracy violates industrial property rights in a commercial and criminal way. Product or brand piracy is punishable by imprisonment of up to 3 years or a fine in Germany (§ § 106 , § 107 and § 108 UrhG ).

The threat of punishment according to § 143 MarkenG provides for a prison sentence of up to 3 years or a fine for a simple offense, and up to 5 years or a fine for commercial activities. The trademark infringement is only punishable in commercial traffic (trade). In most commercial cases, however, criminal liability according to UrhG and MarkenG takes a back seat to fraud . Since the plagiarism is often offered as "original product", a deception is created in order to gain a financial advantage. The penalties for fraud are imprisonment up to 5 years or a fine, for commercial fraud imprisonment not less than 6 months and up to 10 years.

The EU Commission recently presented a draft directive to harmonize the penalties for product piracy in the EU. Both the acquisition and possession of counterfeit goods for private purposes is not punishable.

Austria

With the Product Piracy Act , the EU Product Piracy Regulation was implemented in Austria .

Practical measures against product piracy

Technical protective measures

The protective technologies or technical security measures that can be used against product piracy, such as B. holograms , luminescent pigments , security labels ( VOID foils , document foils ), micro color codes , digital watermarks , copy recognition or data matrix , DNA or nano technologies , RFID etc., are very dependent on the properties of the market and of the customers for whom the products are offered. Furthermore, methods based on cryptographic codes have been developed which make each copy of a product or a spare part unique.

With some products, the customer, especially as a private end consumer, does not care whether he buys a plagiarism, a fake or an original. This is the case, for example, when the price difference between an original and a plagiarism or a fake outweighs the loss in functionality, quality , safety and lifespan (e.g. fake Rolex watches from street vendors in the holiday destination). Often it is only about the value of the product as a status symbol , i.e. about the external effect achieved by owning a product of a certain brand. In this case, measures are at most effective that either improve control over the distribution channels, so that z. B. the retailer can check whether he has an original product, or measures that prevent copying of the products or make it very costly and therefore economically unattractive.

Plagiarism and counterfeits are increasingly appearing, the use or consumption of which exposes the user or uninvolved third parties to accident and health risks. Numerous institutions try to sensitize private and commercial customers to the topic or to inform them how they can distinguish originals from forgeries. In 2010, the VDMA published a film specifically to provide information on the possibilities of technical protective measures.

Detection and seizure of plagiarism, etc. at trade fairs

Most of the plagiarism is produced in China. Political interventions are mostly ineffective. Many aggrieved companies therefore try to disrupt the marketing of plagiarism by z. E.g. looking for plagiarism from Chinese exhibitors at trade fairs. If you find plagiarism, have them and the brochures confiscated. The investigating authorities often impose fines on the exhibitors.

A survey by the VDMA ( Association of German Mechanical and Plant Engineering ) among its members in March 2010 showed that 53% of companies have already made plagiarism and had discovered at trade fairs. The industry associations often help their members to take action against product piracy. Messe Frankfurt has been supporting exhibitors in the fight against brand and product piracy since 2006 (and thus as the first trade fair worldwide). The Exhibition and Trade Fair Committee of German Business ( AUMA ) is also active against product piracy.

The Federal Ministry for Research and Education started a research offensive against product piracy in January 2008 and is supporting numerous research projects.

The media regularly report on seizure actions at trade fairs.

The implementing body is customs; this has u. a. a “Central Commercial Legal Protection” in Munich and operates ZGR-online (central database system for the protection of intellectual property rights online). Commercial property rights are v. a. Trademarks, registered designs, copyrights or patents.

In order to be able to take better action against product piracy, more and more manufacturers have the design of their products protected by a registered design (formerly: registered design ).

Protection against piracy of spare parts

Product piracy does not only affect the consumer goods or textile industries. The problem has long since arrived in the capital goods industry . Spare parts are particularly affected. Due to the low cost structure risk, the imitation of spare parts offers an optimal test field in which product pirates can try out and develop.

The manufacturers of capital goods see themselves confronted with two fundamental problem areas when implementing successful piracy protection for their spare parts. The first problem area is shaped by the general structure of the spare parts market. Worldwide heterogeneous markets as well as a large number of spare parts, suppliers, customers, dealers and competitors make it increasingly difficult for original manufacturers to make a transparent assessment of the risk of piracy for their own spare parts. The second problem area is characterized by inadequate use and lack of knowledge of suitable spare-part-specific protective measures. This includes, for example, measures such as de-standardization, functional integration, quality differentiation, disposal logistics, organization of supplier value creation or the introduction of a second brand.

For these reasons, successful piracy protection for spare parts requires, on the one hand, a transparent analysis of the respective spare parts program for possible risks of piracy and, on the other hand, a targeted selection of spare part-specific protective measures.

public relation

In order to sensitize the public to the problem and to denounce brazen plagiarists, the negative award of the plagiarist has been awarded since 1977 . Companies receive it once a year for particularly brazen counterfeit products. It is now awarded by an independent association, Aktion Plagiarius.

In some cases, companies successfully use specific corporate communications measures to combat piracy. The damage caused by piracy and successful actions against counterfeiters, which are also discussed in the press, for example, are often important topics. In a study supported by the ZVEI , the GVU and numerous other associations, around 60% of the companies also see issues such as education and risk prevention, especially for customers, as a central point in countering piracy.

literature

Web links

Individual evidence

  1. ↑ Hunter of the diluted goods ( Memento of September 28, 2007 in the Internet Archive )
  2. ↑ [1]
  3. ↑ Reinhard Scholzen : Brand and product piracy: An area of ​​crime with enormous growth rates. In: German Police Yearbook 2010, pp. 16–23.
  4. ↑ Annual statistics of the Federal Customs Administration, 2010, page 12ff ( Memento from November 14, 2011 in the Internet Archive )
  5. ^ Stephan Eissler: Modern privateers . On: www.wissen-schaft.org ( Memento from January 1, 2010 in the Internet Archive )
  6. ↑ a b FrankfurterRundschau v. April 20, 2010, page 14f .: [2]
  7. ↑ REGULATION (EU) No. 608/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 June 2013 (PDF) on the enforcement of intellectual property rights by the customs authorities and on the repeal of Regulation (EC) No. 1383/2003 of the Council
  8. ↑ IMPLEMENTING REGULATION (EU) No. 1352/2013 OF THE COMMISSION of 4 December 2013 (PDF) establishing the provisions foreseen in Regulation (EU) No. 608/2013 of the European Parliament and of the Council on the enforcement of intellectual property rights by the customs authorities Forms
  9. ↑ Dt. Federal Ministry of Finance : Action according to Regulation (EU) No. 608/2013
  10. ^ Application for seizure under Community or national law
  11. ↑ Combating trademark piracy - order pending against the operator of an internet shop ( memento of February 11, 2017 in the Internet Archive ), press release of the Mannheim public prosecutor of February 14, 2012
  12. ↑ Technology database: Technical security means . On: www.produktpiraterie.org ( Memento of 7 July 2007 in the Internet Archive )
  13. ↑ [3]
  14. ↑ Consumer guide : Protection against product and brand piracy . On: www.baua.de
  15. ↑ Film: Raising the flag against product pirates on vdma-webbox.tv
  16. ↑ ZVEI ( PDF ( Memento of February 24, 2012 in the Internet Archive ))
  17. ↑ messefrankfurt.com: Messe Frankfurt against Copying ( Memento from April 6, 2010 in the Internet Archive )
  18. ↑ AUMA provides information on how to combat product piracy ( Memento from May 25, 2011 in the Internet Archive )
  19. ↑ BMFT, press release 006/2008 of January 22, 2008. [4]
  20. ↑ [5]
  21. ↑ Customs online - industrial property rights . Website customs online. Retrieved July 28, 2014.
  22. ↑ ZGR-online ( Memento from February 18, 2010 in the Internet Archive )
  23. ↑ zoll.de: The design ( Memento of 26 June 2010 at the Internet Archive )
  24. ↑ [6]
  25. ↑ Joint research project KoPiKomp: [7]
  26. ^ The Plagiarius Story ( Memento from April 19, 2012 in the Internet Archive )
  27. ↑ [8]
  28. ↑ New impulses in the fight against product and brand piracy | Karg and Petersen - Anti-Piracy Analyst. Retrieved February 2, 2017 .