Showing posts with label counterfeit goods. Show all posts
Showing posts with label counterfeit goods. Show all posts

Thursday, 4 September 2025

Afro Leo

SOUTH AFRICA: Detaining counterfeit goods: Finding time to do the job

The decision in LA Group v United States Polo Association (USPA) Gauteng High Court, Pretoria, dated 25 August 2025, is, in the words of the court "complex".  For one, one party employed two senior counsel.  Also, procedurally, the matter involved a decision by a single judge, an appeal to a full bench, and yet a further appeal to a full bench, not the Supreme Court of Appeal.  The dispute originated with the detention of allegedly counterfeit hand bags and luggage of USPA.  The latter applied successfully to a single judge court (the court a quo) for an order releasing the consignment concerned.

 

LA Group applied for leave to appeal.  In response, USPA applied to the court a quo in terms of section 18 of the Superior Courts Act for leave to execute the court a quo's decision.  Section 18(1) of said Act provides that an appeal will suspend a decision - but the court may order otherwise.  LA Group's application for leave to appeal was refused, and USPA's application for leave to execute the court a quo's decision was granted.  In these circumstances, section 18(4)(ii) of said Act creates an automatic right of (expedited) appeal to the next highest court.  On appeal to it, a full bench (the first full bench - FFB) set aside the decision granting leave to execute the court a quo's decision.

 

That left unresolved the merits of the court a quo's decision, hence necessitating a second full bench (SFB) appeal, being the case under discussion here.  The latter court indicated that at the heart of the appeal was the legal question whether it was competent for the court a quo to order the release of the imported goods in circumstances where the goods had been detained under the Customs and Excise Act.  The same question that confronted the FFB.

 

The Customs and Excise Act authorises the police to detain goods for the purpose of establishing whether the goods are liable to forfeiture thereunder.  LA Group argued that the application in the court a quo was premature because a party is only entitled to demand the release of goods which have been seized.  The distinction between goods that have been detained and those that have been seized was said to determine the scope and nature of the relief that may be claimed by a person seeking their return.   USPA on the other hand submitted that the police inspected the container carrying the imported goods and that, consequently, at the time that the application was brought the official had finished her investigation.  With the conclusion of the investigation, the continued detention was no longer justified and the imported goods had to be released.  USPA also referred to the decision in Commissioner for the South African Revenue Service v Trend Finance (Pty) Ltd, which stated that in terms of detention, a limitation must be read in that the right to detain goods only endures for a reasonable period of time.  The SFB however held (paragraph 25) that USPA did not establish that a reasonable period of time had passed.

 

The SFB further stated that there was nothing on the papers to indicate that when the application was launched that the police had completed an investigation into whether there were reasonable grounds to suspect that an offence in terms of the Counterfeit Goods Act was committed.

 

The SFB then had regard to the following passage (paragraph 30) of the ruling of the FFB:

 

"A distinction (which was overlooked by the court a quo) must therefore be drawn between the 'detention' and the 'seizure' of goods.  Goods may only be 'seized' after the inspector has investigated the matter and has exercised a discretion that she reasonably suspects that the detained goods  may be counterfeit and only after she has applied for a warrant in order to 'seize' the goods in terms of the Counterfeit Goods Act.”

 

The SFB thus held that the application was prematurely launched and that the court a quo usurped the discretion of the officials in terms of the Customs and Excise Act.  It was accordingly not competent for the court a quo to have ordered the release of the imported goods.

 

The case establishes that a party is only entitled to demand the release of goods that have been "seized".  It also indicates that the courts will provide the relevant officials with sufficient time to determine the status of possible counterfeit goods.  However, the time period must be reasonable.

 

Prof Wim Alberts (University of Johannesburg)


Read More

Tuesday, 14 April 2020

Afro Chic

Pay a little more, hurt a little less - Sale of counterfeit goods highlighted by social activist



Yusuf Abramjee, a leading social activist based in South Africa pictured alongside, recently published this article in which he bemoaned the state of the economy on account of the widely-prevalent social ill of the peddling of counterfeit goods. Abramjee indicated that South Africa loses R100 billion (around $5,5 million) a year due to sale of these goods, which could be used to improve basic services for the poor and vulnerable members of our society.

The effects of the sale of counterfeit goods are indeed far-reaching and require a targeted and specific approach. Afro-Chic will examine the scope of the problem and its overall impact on economies holistically as well as upon the average man on the street who may not know that his desire for a bargain is ultimately contributing to poverty and inequality.

First we have to ask ourselves what problems the sale of counterfeit goods are. Abramjee outlined the social issues but these are a knock-on effect of other underlying catalysts. An article by Williams (2018) provides a useful summation in this regard, citing that, loss of economic activity and revenue of a country and worldwide, supporting the illicit market, that genuine and legitimate employment is lost, that innovation is discouraged and that foreign investment is lost.

Statistics surrounding sale of counterfeit goods vary across different sources. A very reliable source perhaps is the World Trademark Review, which drew its numbers from the Organisation for Economic Cooperation and Development and the European Union Intellectual Property Office and their respective reports on the matter done in 2013 and 2016 respectively. Their statistics relate to trades made across borders globally (as opposed to nationally, which represent higher figures such as the R100 billion of which Abramjee describes) and the figures provided are projections forecasted for 2022. Some of them are the following:

• Total international trade in counterfeit goods: $991 billion
• Total value in counterfeit and pirated goods: $1.9 trillion- $2.33 trillion
• Displacement of legitimate economic activity: $980 billion- $1.224 trillion
• Estimated reduction in foreign investment: $231 billion
• Total wider economic and social costs: $155 trillion- $1.87 trillion
• Total Employment losses: 4.2 million-5.4 billion

As is clear from the above, urgent steps must be taken to address the issue surrounding the sale of counterfeit goods. As pointed out by Nkateko Mabasa (2018), it is also a cause of xenophobia in South Africa, with a counterfeit goods operation leading to a violent uprising in 2018. Abramjee proposes numerous solutions in the South African context. These include:

• Campaigning and advocacy surrounding the issue
• A tip-off line 
• Proper funding for specialised units dealing with this issue

Constant vigilance is required to ensure that this problem is eradicated the world over. We must all work together to ensure that we do not support those dealing in counterfeit goods so as to ameliorate the plight of the poor. It is through honesty and integrity and yes, the pains of paying a little extra for an item or two, that we can ensure our economy is not subjected to the plight projected above.

Afro Leo agrees, "It is notable that the effect of counterfeit goods has the attention of one of Africa's leading social activists elevating the awareness of the problem from an esoteric one known only to those in the fields of brand protection. As we know on this blog, the issue is Africa's single largest IP problem. Thanks Yusuf and Afro-Chic for highlighting it in a social context"

Brought to you by Afro-Chic


Read More

Wednesday, 7 July 2010

Jeremy

Slipping through the net: SA loses to fakers

How well has the South African economy done in light of the past month's football frenzy? Not as well as it might, according to "Counterfeit World Cup goods dent South African economy", published on CPA Global's New Legal Review (here). Citing a report from the INTA, the article reports that the influx of fake-branded clothing into South Africa has distracted consumers from purchasing indigenous goods, since counterfeits have provided them with a cheaper means of keeping up with fans wearing licensed products.

Figures from the South African Clothing and Textile Workers Union suggest that 14,400 jobs have been lost in the country’s textile sector over the past year as a result of World Cup fakes. On a more positive note, in the past six months South African customs authorities have impounded fake World Cup goods worth R66m, (US$8m) -- though there are of course no figures for the fakes that slip through the net.
Read More

Tuesday, 10 November 2009

Afro Ng'ombe

Software Raid in Lagos Confiscates High Quality Copies

Nigeria’s Vanguard reports on a recent counterfeit software raid in Lagos.  The Nigerian Copyright Commission (NCC) confiscated a number of copies of various Microsoft products.  Unlike the usual pieces of counterfeit software collected in raids conducted by the Commission, these items were of high quality.  The NCC stated that the seller of the counterfeit goods deliberately purchased high quality counterfeit goods in order to trick even those customers who look out for counterfeit products.  The article did not say how the NCC knew that the seller himself was not tricked into thinking these were genuine Microsoft products.

Usually, the discussion about counterfeit software in Africa takes note of the harm caused by poor quality products, viruses and malware that harm the unsuspecting users computer. Since these products were of high quality, those kinds of ill effects presumably were not an issue.  However, it is important to note that the sale of high quality counterfeit goods also has harmful effects:

“Piracy is not a victimless crime. The activities of Plum Telecom put the businesses of legitimate resellers in jeopardy and impact the credibility of the Nigerian IT reselling community as a whole.” – Mr. John Ogboru of the Computer and Allied Products Dealers Association of Nigeria

Read More

Friday, 15 May 2009

Anonymous

Counterfeit costs

Mandla Mnyatheli, the Chief Director of company and IP enforcement at South Africa's DTI said recently that trade in counterfeit goods is costing the country more than R2 billion annually in lost revenue. A 2006 research report by UNISA's Bureau for Market Research found that counterfeit goods worth over half a million rands were confiscated at borders during the period under review. A major reason for this was the acceptance in developing countries of fake products.
While consumers do not always find it unacceptable to purchase counterfeit consumer goods such as bags, clothes and movies, these same consumers would no doubt be horrified to know that possibly 10% of medicines and pharmaceuticals on the South African market are counterfeit. This is the figure provided by a spokesman for the Medical Controls Council, who said that most of these products originated from China, India or Pakistan.
Read More

Monday, 9 June 2008

Njuguna

Tanzania devises new measures to contain fake cosmetics and drugs

The East African reports that Tanzania Food and Drugs Authority (TFDA) will control advertisements for cosmetics and drugs in a bid to crackdown on fake products. It appears that TFDA is keen on enforcing the Food, Drugs and Cosmetics Act, which restricts promotion of regulated products.

By controlling promotion of products such as food, drugs, cosmetics and medical devices the authority expects that only reliable information will be disseminated to consumers. Any method of introducing, familiarizing or encouraging a person to use a particular medical product will come under close scrutiny by the authority and all forms of advertisements such as posters, billboards, radio and television will be targeted.

The authority blames rapid changes in technology, globalization and market liberation for the increase in fake cosmetics in Tanzania. As a result of trade in counterfeit products many people particularly women have suffered from toxic effects of these products.

The report says that TFDA is currently installing laboratory equipment to analyze the quality of drugs before they are approved.

As posted earlier here on Afro-IP, a recent study revealed that anti-malarial medicines sold in a number of countries across Africa are either counterfeit or are not strong enough to cure the disease. The survey indicated that Kenya at 38% had the highest percentage of inefficient drugs. Uganda and Ghana followed at 35%. Rwanda had 33%.Tanzania and Nigeria 32%.

It will be recalled that during the passage of the Olympic torch in Dare-salaam (reported here) there were protests against the importation of counterfeit goods from China.

Tanzania seems to have taken the lead in the region in fighting counterfeit activities. This latest initiative comes hot on the heels of a new law enacted to give Tanzania's Fair Competition Commission (FCC) powers to take action against dealers of counterfeit goods (see an earlier post here).

In Kenya, efforts to enact an anti-counterfeit law have not borne fruit despite the general consensus that such a law is urgently needed to address the menace.
Read More