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Counterfeits of your product: the first moves that matter

Finding a copy of your product for sale online produces a very specific urge: report it, message the seller, get it down today. That urge is understandable, and acting on it is usually the most expensive thing you can do in the first week.

A listing is the visible end of an operation that has stock, a supplier, a fulfilment route and a margin. Remove the listing and you have removed a symptom, while telling whoever is behind it that somebody is watching. Accounts get renamed, stock moves to a second storefront that has been sitting dormant for exactly this purpose, and the evidence you had yesterday is gone.

Preserve before you act

Everything later depends on what you capture now, and you generally get one clean pass at it before the other side becomes cautious.

Capture the listing, but also the context that tells you what kind of operation this is: the storefront, the seller's full inventory, their pricing, their feedback history and how long the account has existed. A seller whose inventory is mostly unrelated goods, on an account opened recently, is a different problem from one selling only your product from an account with a long trading record. The first is probably buying from whoever is cheapest this month. The second has a relationship with a supplier.

Both readings are provisional and worth recording rather than concluding upon. A storefront can be rebuilt under a new name at short notice, and the inventory that made the account readable in the first place goes with it, so the record is worth making while the account is still trading in its ordinary way.

Capture it in a form that survives challenge. A phone photograph of a screen proves very little later. What matters is that the record shows source and date in a way a platform, a court, or the other side's solicitor cannot easily pick apart.

The test purchase, and what it actually tells you

A controlled purchase turns a suspicion into something usable, and confirming that the goods are fake is the smallest part of what it produces.

It also tells you whether the goods shipped from a bedroom or a warehouse, whether they were already in the country or came through a fulfilment centre, and how professional the operation is. Those details are what separate a nuisance seller from a distributor quietly supplying a wider network.

Handled to an evidential standard, it becomes an exhibit capable of being put in front of a platform, a regulator or a court. Handled casually, it is a parcel in a cupboard that the other side will characterise as unreliable, and there is no second attempt at the same purchase once the seller has been alerted.

Your own rights are the engine

Enforcement runs on registered rights. Without a registration you are not without options, but every option becomes slower and more arguable.

A registered trade mark is what gets you into the platform brand protection programmes (Amazon Brand Registry, eBay's VeRO and their equivalents) where removals happen quickly and without a court. It is also the foundation of any claim, and of the criminal provisions that apply to dealing in counterfeit goods.

Enrolment in those programmes is not instant, and it is not something that can be arranged in the week a problem appears. Brands routinely discover the gap at the point of first use, which is the worst moment to find that the right the programme wants is still an application.

Registered designs, and copyright in packaging, artwork and photography, give further routes and frequently catch what a trade mark alone does not. Particularly where a copyist has changed the name but reproduced everything else. Worth auditing before you need it, because gaps in a portfolio are only ever discovered at the worst possible moment.

The trade behind the shopfront

This is where enforcement commonly stops, and where the outcome is actually decided.

The account selling to your customers is rarely the operation producing the goods. Behind it there is usually a supplier serving a number of sellers. If you only remove listings you will be doing so indefinitely, at a cost that recurs forever while the business underneath is untouched.

There is an internal version of that problem, and it is the reason the recurring cost survives review. Enforcement is usually measured by the number of listings removed, because that is the figure easiest to produce and the one that looks most like activity. It rewards the work that changes least, and it makes a permanent expense read as evidence that the programme is succeeding. A brand that instead records how often the same goods reappear under a new account tends to reach a different decision about where the money should go.

Identifying who sits behind an account is lawful and is frequently achievable. It is work of an entirely different kind from a takedown, and it is what turns a recurring cost into a matter capable of ending.

Choose the route that ends it

With evidence preserved and the operation mapped, the choice of route becomes a commercial decision rather than a guess.

• Platform takedowns. Fast, cheap and available without a court. Effective against the shopfront and of little use against the trade behind it.
• Customs detention. An application for action lodged with HMRC allows Border Force to detain suspected counterfeit shipments before they reach the country. It is underused, and it acts on the goods themselves rather than on the advertisement for them.
• Correspondence that means something. A letter carries weight in proportion to the evidence behind it. Sent before anything has been established it carries very little.
• Trading standards and the criminal route. Dealing in counterfeit goods can be a criminal matter as well as a civil one. Whether that route is available or sensible depends heavily on scale and on evidence quality.
• Civil proceedings. For serious or repeat operations, where the commercial harm justifies it. Interim relief can be available where matters are urgent.

In practice these combine. A customs application running quietly in the background while takedowns continue is a far stronger position than either alone, and the combination is chosen once rather than assembled in reaction to each new listing.

What is not worth doing

Not every counterfeit justifies a response, and pretending otherwise is how brands spend more on enforcement than the harm ever cost them.

A single overseas seller shifting small volumes at a price your customers would never pay is rarely worth pursuing to judgment. Enforcing anything you won would mean beginning again in the country the seller actually operates from, and the effort is better spent on the supplier than on the sellers it feeds.

The same restraint applies to the copy that is merely irritating. A product that borrows your colourway but sells into a market you do not serve, at a quality your customers would notice, takes nothing from you that a claim could recover. Working out which category a problem falls into is most of the value of an early conversation, and it is a judgement about your own market rather than about the copy.

This guide is general information about how these matters usually run. It is not advice, and nothing becomes advice until terms are agreed in writing. Brandleys Legal Ltd delivers reserved legal activities alongside regulated partners.