What do you do when you discover that you have bought counterfeit goods? A friend of the firm was recently presented with this dilemma.
She purchased a pair of “AirPods” at an incredibly discounted price and was sharing what a great deal she had received with her siblings when they pointed out to her that she had been duped and it was unlikely that they were authentic. Determined to prove them wrong, she Googled whether there was a way to check the authenticity of Apple products and found a section of the website where one could check the serial number of your product. After entering it, she was notified that the serial number was “no longer in use” – an indication that there was a chance that the AirPods she had so excitedly purchased were likely stolen, reconditioned, or counterfeited.
The Counterfeit Goods Act 37 of 1997 defines counterfeiting as producing goods that are an imitation of the original or that are designed with features to mislead or be confused with the original product, without the license or permission of the owner in whom the intellectual property rights to the original goods are vested. In other words, a product is considered a counterfeit if it seeks to imitate the original branded product or confuse consumers about its authenticity. Section 2 of the Counterfeit Goods Act makes it a criminal offence to produce or sell counterfeit goods in South Africa, which would entitle a consumer to return the product and report the supplier to the police, as the woman in the above scenario did. Through the police, she was lucky enough to get her money back.
What does the Consumer Protection Act say?
While the Consumer Protection Act 68 of 2008 (the CPA) does not mention counterfeit goods specifically, it has several provisions that prohibit deceitful, false, and misleading conduct in both marketing goods and services and transacting with consumers. These include sections 4(5)(b), 29(a-b), 41(1)(a), and 48. According to these sections, a supplier may not, in the process of marketing goods or services or transacting with a consumer, engage in conduct that is designed to mislead and deceive the consumer as to the nature, property or any other material aspect of the goods, and may not make any direct or indirect false or misleading representations about the goods – including those about the origin and authenticity of the goods. Any agreement entered into as a result of such conduct by a supplier is void in terms of section 51(3), and you would be entitled to a refund on your purchase.
The lesson that can be learnt here is that while it is clearly against the law for suppliers to engage in unconscionable conduct, you would be doing yourself a favour by doing your due diligence in checking the authenticity of a product before purchasing it – lest the seller evades ever refunding you.
To this end, here are our top 5 tips for protecting yourself against purchasing counterfeit goods:
- Choose your supplier carefully.
Always make sure you buy from a reputable supplier. If you are purchasing electronics, do your best to purchase directly from the brand’s own store (e.g., the iStore) or from an authorized dealer or reseller. As a general rule, try to purchase any goods from an established supplier with a known address and contact details, and shop around for options.
- Check the packaging.
Check the packaging for spelling and grammatical errors. These are often a telltale sign of inauthenticity.
- Verify the serial number or scan the QR code.
If the product has a serial number on the box, verify it on the brand’s website before you purchase the item. If it is possible to open the product, make sure that the serial number on the product and on the box match and that it is verifiable via the manufacturer. Some products have QR codes on their packaging, you can easily download a QR scanner app on your phone for free to scan those codes and check the authenticity of the products.
- Know the market price.
Be sure to have an idea of the market price of the item you are going to buy. This will help you identify suspiciously low prices, which are often an indication of inauthenticity. Always remember that if the deal seems too good to be true, it likely is.
- Check the quality.
If possible, open the packaging and check the quality of the product before you purchase it. Authentic goods will be of high quality and will have greater attention to detail. You are more likely to notice sloppy errors and asymmetry on counterfeit goods. If it is not possible to open the packaging before purchasing the product, do so immediately after, while still in store.
If you suspect that you have been sold a counterfeit product or if you would like any further advice on this, do not hesitate to contact your consumer lawyers at admin@broekmann.co.za or 021 422 0269.