Halloween and Bonfire Night are both just around the corner and, as the UK's second biggest commercial event after Christmas, the tills are ringing with the sale of all sorts of products, from sweets and costumes to fireworks and make-up. Businesses that manufacture and sell such goods are particularly busy in October and November, and in the preceding weeks, with trick-or-treaters, partygoers, and those celebrating Bonfire Night getting ready for the celebrations.
Businesses and consumers need to be particularly aware of counterfeit Halloween and Bonfire Night products, which are potentially dangerous and harmful.
They should also be aware of opportunistic sellers who pass off their own counterfeit products as those of legitimate businesses, which could not only infringe upon the intellectual property rights of businesses but, worse, could be seriously harmful to the end user and others.
Fright Night Concerns
This is a time of year when commercial opportunism is rife, demand is high, and people may apply less care than normal when considering the branding and source of goods.
Look-a-likes, infringing brands, and straightforward counterfeit products are available online and in-store, and great care must be taken to avoid both selling and buying such products.
Online sales platforms (such as websites, social media, etc.) may seem to be legitimate online retailers, but may in fact be selling products which are infringing intellectual property rights or are counterfeit, and often do not comply with the required product safety standards. There is a significant likelihood of infringement of brand owners' intellectual property rights—both look-a-likes and misleadingly branded products—but the increased availability of low-cost counterfeit goods presents a very real risk of incidents and accidents resulting in serious injury or harm. For example:
• counterfeit fireworks often contain chemicals which make them unstable and dangerous to people, pets, and other animals, and damaging to the environment;
• counterfeit make-up and face paints can contain harmful substances such as lead, arsenic, and mercury, which can cause short- and long-term injury and illness;
• counterfeit costumes can contain toxic dyes and be highly flammable, increasing the potential for serious injury and burns to adults and children alike.
Not only does this pose the real risk of harm to users and others, but there is also the risk that any harm caused by counterfeit and dangerous products will result in damage to brand owners, authorised distributors, and legitimate businesses. Reputational damage can be caused in the flash of a sparkler and may never be recovered.
Tips for Avoiding a Genuine Nightmare
For businesses and consumers, it is important that they buy products from a well-known and legitimate distributor, supplier, or retailer, and only from a reliable and known source of goods.
Businesses should take immediate action to remove infringing and counterfeit products from their shelves. This can be done by means of legal action, practical measures, and alerting the relevant authorities.
As a business owner, if you suspect someone of selling infringing or counterfeit products, you should immediately contact Trading Standards. Trading Standards enforces the law in relation to product safety and counterfeiting, and has the power to issue warnings and fines, apply to the court for enforcement orders, seize goods, and seek formal enforcement through prosecution.
You can notify customers that you are aware of counterfeit products on the market and ensure that your customers know what to look out for to identify your genuine products and to avoid the counterfeits.
You should also use online take-down procedures to remove infringing and counterfeit products.
How MFMac Can Help
In the interests of protecting intellectual property and protecting customers from potentially dangerous products, we urge businesses and brand owners to make themselves aware of the risks associated with infringing and counterfeit products and to take swift, appropriate action.
If you believe another party is infringing upon your intellectual property rights, please contact Euan Duncan or one of his colleagues.
From everyone at MFMac, we wish you a safe, fun, and fright-free Halloween.
This article has been co-written by George Munro, a Trainee Solicitor in MFMac's Commercial team.
