Here are some ideas for precautions that make it harder to copy your products.
Make sure to register IP rights so they are easier to enforce! Read more here.
Many counterfeit and pirated products look almost identical to the genuine product and it can be difficult for even the manufacturer of the original product to determine if a product is genuine or fake. You can face this challenge by inserting secret identifying elements into your product that make it easier for your business to distinguish the genuine product from counterfeit and pirated products. The secret element can be a piece of colored thread sewn into the collar, label or other hidden places on a jacket, a spelling mistake in the product guide or another hidden mark on the product. By inserting several hidden elements into your products, you make it difficult for the infringers to find and copy all of them.
If your business receives a complaint about one of your products, you can ask the complainant to look for the hidden elements. If the consumer does not find the hidden elements, you can inform the consumer that the product is fake. This could minimize bad user reviews on the internet and other bad mention of the product by consumers. At the same time, you can encourage the consumer to purchase the genuine product.
Another option is to insert small chips in the product, which make it possible to trace the product’s path to the consumer and make it easier to identify original products from fakes. You can also use a combination of holograms, barcodes and two- or three-dimensional labels on the packaging.
Counterfeit and pirated products are often sold through the internet. Therefore, it is a good idea to monitor the internet for sale of such products. You can either assign one or more employees from your company to this task or you can obtain assistance from external providers. Whichever method you choose, it is a good idea to have routines that ensure a frequent and consistent search for copies of your products.
If you choose to place your production in another country, it is a good idea to initially examine the subcontractors you want to cooperate with. Try to obtain as much knowledge about future subcontractors as possible, ask other businesses about their experience with the subcontractor or investigate whether the subcontractor has previously been involved in cases of counterfeiting and piracy or abuse of business secrets.
It can also be a good idea to enter into written cooperation agreements with subcontractors with legally binding secrecy clauses and clarification of ownership of IP rights. The cooperation agreements can include specific requirements for the suppliers and / or producers to cover any loss if a product turns out to be fake. Such precautions will put you in a better position in case of disputes.
It can also be a good idea to spread your business’ production to several locations - maybe even in several countries - and to assemble the final product at a location with increased security. By doing so, you make it more difficult for infringers to replicate your company’s production process. Also monitor subcontractors and the entire chain of commerce on a continuous basis.
Protect your trade secrets
Much of the knowledge that makes your business unique helps to make it difficult for others to illegally copy your products. Therefore, it is important to protect this knowledge, also known as trade secrets. This can be done by describing how employees in your business should handle important knowledge, by describing who should have access to what knowledge, and by describing the handling of trade secrets as an element in employment contracts and other relevant documents.
You should also be aware that trade secrets - including technological knowledge as well as customer information and market analysis - can be leaked. This can for example happen via (former) employees and (potential) collaborators. Therefore, it is advisable to limit the number of employees and collaborators who have access to your trade secrets as much as possible.
It is also important to be aware of what product information your business provides in marketing material and on the Internet, as such information can be used as a template for production of counterfeit and pirated products. Freely available information about your products makes counterfeiting and piracy easier for infringers.
Create a product library
It is advisable to keep a complete product archive of your business’ marketing materials and products, including products that are no longer in production. In case an infringement occurs, it is beneficial to be able to document what products your business has produced.
Application for actions to the customs authorities
Consider submitting an application for action to the customs authorities, so they can look for illegal copies of your products and detain these products if they are found. The service is free of charge in the EU. Read more here.
Dialogue with consumers
It can be a good idea to encourage customers / consumers to inform you if they discover illegal copies of your products, possibly through a specific email address where customers / consumers can inform you directly. You can also warn customers/ consumers about dangerous and illegal copies of your products.
In addition, you can provide clear information to your (potential) customers on how to avoid buying fake copies of your products.
Are you aware of the possibility to buy IPR insurance? IPR insurances can, for example, cover your business’ costs to enforce your own IP rights against infringers. You can read more about IPR insurance here (in Danish) on website of the Danish Patent and Trademark Office.
Develop a strategy
Read more here.
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It is a good idea to develop a strategy for prevention of counterfeiting and piracy of your business’ products. Here are some of the considerations that such a strategy can contain.
It is a good idea to develop a strategy for both prevention of counterfeiting and piracy of your business’ products and how to handle actual infringements, if they occur. For example, your business can decide which of your departments does what and when in the given situation. By having a systematic approach, you can hopefully prevent some cases of counterfeiting and piracy and also save valuable time if an infringement occurs.
It is also a good idea to incorporate considerations about how to prevent counterfeiting and piracy in the overall business strategy. For example, plans for moving the production and other development activities should involve plans for avoiding counterfeiting and piracy of the business’ products. Another possibility is to identify risk factors in the production of your products and introduce measures to counteract the risk factors. You can benefit from the competencies of all departments in the work, which also ensures that everyone backs up the strategy.
If you have a strategy for handling counterfeiting and piracy, it is important that you enforce it. Otherwise, it will not have value for you. This means that management must be willing to allocate the necessary resources for the task - both time and money. As businesses are different, it is difficult to make recommendations - on how to handle counterfeiting and piracy - that will suits everyone. For some businesses, zero tolerance policy is the best solution, while others choose to focus on conciliatory solutions. There are also businesses that do not respond at all to counterfeiting and piracy of their products, but hope that the problems disappear by themselves or do not create much harm. The last strategy is risky and likely to be unsustainable in the longer term where it can cause major problems.
In most cases, the best thing to do is to act fast, strong and using as many measures as possible. If you have the opportunity, you should secure any evidence as early as possible.
Be prepared for how to handle the press and consumers if counterfeiting and piracy occurs. Preparations can include choosing a spokesperson, agreeing on the messages you want to communicate and on how open you will be. If your business is in a media crisis on social media, it is important to have clear messages and clear arguments.
It can often be a good idea to involve one or more advisors in the preparation of your strategy on how to prevent counterfeiting and piracy.
Get ideas for preventive measures here.
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Your business will be in a stronger position in the fight against counterfeiting and piracy if you register the business’ IP rights.
Trademarks and design rights can be protected through registration. Trademarks and designs can also, to some extent, be protected through use. However, registration of the rights will put your business in a stronger position against counterfeiting and piracy. Registration will make it easier to prove your rights and thereby also prove that your rights have been infringed.
Patents and utility models can only be obtained through application and registration.
On the website of the Danish Patent and Trademark Office you can find information on how to register trademarks, designs, patents and utility models.
Artistic and literary works are protected in Denmark via copyright. Copyright cannot be registered in Denmark. Copyright to an artistic or literary work emerges when the work is created. You can find more information on copyright on the website of the Ministry of Culture.
It is a good idea to register your business’ IP rights in markets where your product is produced or marketed and also in markets where the products are in transit. It is also important that the rights are registered in markets where you plan to start a production and in markets where counterfeit products are expected to be produced or sold.
Another advantage of registered IP rights is that you can ask the customs authorities - free of charge - to detain counterfeit or pirated products at EU's external borders. You cannot ask for this service, if your IP rights are unregistered. However, you can ask for detention of copyright infringing products, without a registered right, as copyright cannot be registered in Denmark. Read more about assistance from the customs authorities.
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What can you do if your products / trademarks have been illegally copied? Here is a list of some of the things you can do.
If you have a strategy on how to handle infringements of your products, you should usually follow the strategy.
Get more ideas below.
It can be difficult to determine what the right thing to do is in the specific situation. Should you contact the manufacturer of the fake products and run the risk that evidence will be removed? Should you initiate enforcement proceedings where evidence is secured or the infringing products are seized? Should you file a lawsuit to maximize the preventive effect and possibly get compensation for lost profits? It can be a good idea to discuss with your advisor how to handle the specific situation.
The Patent and Trademark Office offers initial guidance through its ‘Hotline on Enforcement and Counterfeiting’ (only available in Danish). The Hotline can be contacted by phone (+45 22 60 56 87) on weekdays between 9.30 am and 11.30 am. The hotline can also be contacted by e-mail to; email@example.com.
You should always consider contacting the police in the relevant country if you discover counterfeit or pirated products. In Denmark, you can file a police report on IPR violations to the State Prosecutor for Serious Economic and International Crime (SØIK) by email to firstname.lastname@example.org. For example, you can use this standard form. Investigations and criminal prosecution of IPR crimes have been gathered at SØIK. Read more in this press release (in Danish).
If you detect falsified medicine, you should contact the Danish Medicines Agency.
In some cases, your business will be notified of suspected counterfeit or pirated products by the Customs Agency, which has detained such products when import or export was sought. If that happens, your business must determine, if the products are infringing your rights and if you want to pursue the case against the importer / producer. Read more about interventions by customs authorities here.
In many cases, you can also receive advice and guidance from the Danish Embassy in the country where the counterfeit/pirated goods originate from.
Counterfeiting and piracy is a problem in many countries and for many businesses. A number of helpdesks / guides provides guidance on how to handle the challenge in different countries / regions. Here you will find some of them:
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