Chibson In A Shop

not_the_dj

Voxman said:

not_the_dj said:

Selling counterfeit goods is illegal. That's it. 

But is it? The definition of counterfeit relates to "the exact imitation of something valuable with the intention to deceive or defraud".  The shop didn't make the item and nor are they defrauding anyone as they are making it crystal clear this is a Chinese made 'copy' guitar.  

Hence why I was interested to gain my daughter's thoughts on this.      

We'll wait for her answer then if she's the only one you'll believe on this ;-)

fretmeister

Voxman said:

This is an interesting & emotive subject and truthfully I'm not 100% sure as to what the position is.  My daughter is an intellectual property lawyer, and I've asked for her thoughts on this from the perspective of both UK criminal law and copyright/IP position.  If she has time to share any thoughts on this, I'll feed these back.  

It's only emotive to people who get upset when they are informed they are breaking the law.

Loads of info is available from various sources.

http://www.devonsomersettradingstandards.gov.uk/consumers/understanding-your-rights/counterfeit-goods-ip-theft/

blobb

There's a guy works down the Chibson shop swears he's Elvis?

Sassafras

This is a Givson. Not really the same thing at all.

professorben

What if he sharpied a question mark at the end of Gibson?

fretmeister

Voxman said:

not_the_dj said:

Selling counterfeit goods is illegal. That's it. 

But is it? The definition of counterfeit relates to "the exact imitation of something valuable with the intention to deceive or defraud".  The shop didn't make the item and nor are they defrauding anyone as they are making it crystal clear this is a Chinese made 'copy' guitar.  

What about antiques?  There are many fakes around for sale in many antique shops.  If these were palmed off as original where the shop knew the item was fake, that would be fraudulent.  But if it was sold as a mid-century copy of a Ming vase, price £200, there is full disclosure and no fraud.  And surely it's fraud and misrepresentation that is all legislation is concerned with - IP/Copyright is then a matter for the Civil Courts only.   

Hence why I was interested to gain my daughter's thoughts on this.      

Don't forget the Trade Marks Act which makes it a specific offence to create or sell an item with a trade mark on it that the maker doesn't own - unless they get permission. Most counterfeit items are under trade mark protection as that is where their value lies.

The test there is not just to cause a loss to other people, but to gain for himself. This is why it is legal to own (as long as you didn't make it) but not sell.

On Summary Conviction there is a 6 months prison stretch available, but on indictment the maximum is 10 years under Trade Marks Act 1994 Section 92(6)

(that also deals with Chalky's "different league" point)

Chalky

I haven't disputed the illegality @fretmeister, just question whether the enforcement will follow.  Statements on a Trading Standards website is one thing, taking real action is another.

Voxman

not_the_dj said:

Voxman said:

not_the_dj said:

Selling counterfeit goods is illegal. That's it. 

But is it? The definition of counterfeit relates to "the exact imitation of something valuable with the intention to deceive or defraud".  The shop didn't make the item and nor are they defrauding anyone as they are making it crystal clear this is a Chinese made 'copy' guitar.  

Hence why I was interested to gain my daughter's thoughts on this.      

We'll wait for her answer then if she's the only one you'll believe on this ;-)

It's not a question of 'belief' and it's nothing personal I promise.  But I am curious and I'd like to try & gain a factual, reasoned and legal view supported by specific UK law and precedent.  I'm not suggesting you and others are necessarily wrong - but it has to be more than just a 'gut feeling' or a 'strong personal view'.  I don't think anyone here who has posted so far has sufficient legal expertise to provide a considered view with reference to supportable and appropriate UK legislation.  I have sufficient legal training to know that often things can be a lot more complex and convoluted than we might initially think, and that sometimes things are not always so clear-cut black & white.  Which is why of course we have lawyers and courts!  

Chalky

Ok @Voxman and @fretmeister ....

Seconds away, Round 1....

Bridgehouse

I'm still trying to work out why this subject in particular (copying a Gibson Les Paul) is so emotive - both for and against.

I understand the arguments, the impact, the potential to defraud etc etc etc - it's just I don't get why so much emotion? 

Has as anyone here been caught out by a fake?
Why don't we have 20+ page threads on fake strings?
Is this the Statins argument of the guitar world?

Voxman

fretmeister said:

Voxman said:

This is an interesting & emotive subject and truthfully I'm not 100% sure as to what the position is.  My daughter is an intellectual property lawyer, and I've asked for her thoughts on this from the perspective of both UK criminal law and copyright/IP position.  If she has time to share any thoughts on this, I'll feed these back.  

It's only emotive to people who get upset when they are informed they are breaking the law.

Loads of info is available from various sources.

http://www.devonsomersettradingstandards.gov.uk/consumers/understanding-your-rights/counterfeit-goods-ip-theft/

I had a read of that and it's a simplified overview from the Council - my previous comments regarding use of words like fake, counterfeit & illegal still refer.   But I agree it does seem to back up the general consensus here - the word 'likely' is interesting though. 

" Is it okay as long as the product is marked that it’s a fake?

No, even if a trader sells a product as a fake, he is still likely to be committing a criminal offence. For example, if a fake Nike trainer uses the name, logos, designs and other protected property of the Nike company, it is illegal whether or not it’s sold as being a fake.

Similarly, if a product slightly misspells a brand name but is still obviously trying to mimic a well-known logo, it is still likely to be illegal. "   

Voxman

fretmeister said:

Voxman said:

not_the_dj said:

Selling counterfeit goods is illegal. That's it. 

But is it? The definition of counterfeit relates to "the exact imitation of something valuable with the intention to deceive or defraud".  The shop didn't make the item and nor are they defrauding anyone as they are making it crystal clear this is a Chinese made 'copy' guitar.  

What about antiques?  There are many fakes around for sale in many antique shops.  If these were palmed off as original where the shop knew the item was fake, that would be fraudulent.  But if it was sold as a mid-century copy of a Ming vase, price £200, there is full disclosure and no fraud.  And surely it's fraud and misrepresentation that is all legislation is concerned with - IP/Copyright is then a matter for the Civil Courts only.   

Hence why I was interested to gain my daughter's thoughts on this.      

Don't forget the Trade Marks Act which makes it a specific offence to create or sell an item with a trade mark on it that the maker doesn't own - unless they get permission. Most counterfeit items are under trade mark protection as that is where their value lies.

The test there is not just to cause a loss to other people, but to gain for himself. This is why it is legal to own (as long as you didn't make it) but not sell.

On Summary Conviction there is a 6 months prison stretch available, but on indictment the maximum is 10 years under Trade Marks Act 1994 Section 92(6)

(that also deals with Chalky's "different league" point)

Yup, I see that. 

Chalky

Bridgehouse said:

I'm still trying to work out why this subject in particular (copying a Gibson Les Paul) is so emotive - both for and against.

I understand the arguments, the impact, the potential to defraud etc etc etc - it's just I don't get why so much emotion? 

Has as anyone here been caught out by a fake?
Why don't we have 20+ page threads on fake strings?
Is this the Statins argument of the guitar world?

I think anyone outside the guitar world would ask how is it different to fake Rolexes and unofficial celebrity T-Shirts readily available in exotic holiday destinations...

Bidley

Jeez, I'm pretty sure this was repeated ad nauseum in the Terry Morgan thread. I think everyone's had it drummed into them by now, surely?

Chalky

Does Customs grill all passengers returning from certain holiday destinations to see if they have bought a fake Rolex? Surely an easy target for law enforcement?

As I said, there is illegal and there is illegal....

Voxman

I think the most publicised and famous fake is Slash's Les Paul.  If Gibson didn't take any action on that (in fact they embraced it and took full advantage of Slash's image/publicity!) I wonder if that could be deemed to create a precedent that might estop them from taking action against others?  Just a thought! 

Bridgehouse

Chalky said:

Bridgehouse said:

I'm still trying to work out why this subject in particular (copying a Gibson Les Paul) is so emotive - both for and against.

I understand the arguments, the impact, the potential to defraud etc etc etc - it's just I don't get why so much emotion? 

Has as anyone here been caught out by a fake?
Why don't we have 20+ page threads on fake strings?
Is this the Statins argument of the guitar world?

I think anyone outside the guitar world would ask how is it different to fake Rolexes and unofficial celebrity T-Shirts readily available in exotic holiday destinations...

Do watch forums have countless pages of chat about fakes and whether it's right/wrong?

I was out shopping with the missus recently and we saw a 'street trader' selling 'branded perfume'.

We both Lol'd and said 'fake' and moved on. 

Voxman

Bridgehouse said:

Chalky said:

Bridgehouse said:

I'm still trying to work out why this subject in particular (copying a Gibson Les Paul) is so emotive - both for and against.

I understand the arguments, the impact, the potential to defraud etc etc etc - it's just I don't get why so much emotion? 

Has as anyone here been caught out by a fake?
Why don't we have 20+ page threads on fake strings?
Is this the Statins argument of the guitar world?

I think anyone outside the guitar world would ask how is it different to fake Rolexes and unofficial celebrity T-Shirts readily available in exotic holiday destinations...

Do watch forums have countless pages of chat about fakes and whether it's right/wrong?

I was out shopping with the missus recently and we saw a 'street trader' selling 'branded perfume'.

We both Lol'd and said 'fake' and moved on. 

Yeah, but you can sniff those fakes out & smell 'em a mile off!  

fretmeister

None of this thread has been about enforcement though.

I have no doubt that Trading Standards will be down the markets looking at Luis Vitton bags and Burberry scarves and the like, on sale by the dozen for years before they wander to a shop about a single dodgy guitar.

Until someone buys it and then complains. Then they'll open a file as there has been an individual victim. And that file will be very handy for propping up the edge of the coffee machine.

Enforcement is the practical ending of any legal discussion, but this thread has been about the technical issues of legality. 

Voxman appears to be having difficulty in accepting that the shop has committed an offence.

The sentencing guidelines are here: https://www.sentencingcouncil.org.uk/offences/item/trade-mark-unauthorised-use-of-etc/

No doubt he'll ask his daughter to verify them

There are cases out there where properly worded disclaimers have been enough - like on mileage readings on cars - as long as the disclaimer is strong enough to ensure the customer ignores the mileage reading completely.

But a mileage reading is not a Trade Mark, and lots of those disclaimer decisions are from the Trade Descrptions Act, most of which has been replaced by the various new Consumer Protection regulations over the last 10 years or so.

Chalky

Bridgehouse said:

Chalky said:

Bridgehouse said:

I'm still trying to work out why this subject in particular (copying a Gibson Les Paul) is so emotive - both for and against.

I understand the arguments, the impact, the potential to defraud etc etc etc - it's just I don't get why so much emotion? 

Has as anyone here been caught out by a fake?
Why don't we have 20+ page threads on fake strings?
Is this the Statins argument of the guitar world?

I think anyone outside the guitar world would ask how is it different to fake Rolexes and unofficial celebrity T-Shirts readily available in exotic holiday destinations...

Do watch forums have countless pages of chat about fakes and whether it's right/wrong?

I was out shopping with the missus recently and we saw a 'street trader' selling 'branded perfume'.

We both Lol'd and said 'fake' and moved on. 

Back in the 80s I once watched such a trader on Oxford St.  There was one guy and a young assistant.  After watching them for twenty minutes, I sussed there were 4 actors, a man and woman as a couple, a late 20s guy in casual and a mid-40s suited and booted business-type.  They went round and round, putting on an act of buying the perfume, which was then bagged while they thrust a fiver or tenner in the seller's hand. Obviously, the bag contained the replacement note for their next purchase.  The couple were quite ostentatious in their manners and she had a large luxurious fur coat.  She did the whole "Wow, we'll take two!" act over and over.  The young guy did the "Oh thanks, you've saved me a fortune" act and the businessman did the "I'm important and in a hurry" act. Brilliant in its deviousness and believability!