Hi ozbargainers,
Let's say I want to open a business that sells high quality fake nike shoes, basketball jersey, etc online. I will tell the customers straight away that i'm selling fake replicas under the product description.
Is this thing allowed?
Am i going to get sued by nike?
thank you.
i think its the other way.. if u r outside austrlia probably u can sell it..
but if u r in aust, i think its illegal
Yep, that's what I meant to say…
But I was responding to "Am I going to get sued by nike?"
Is this a store/market stall sale or online sales? If online via which service?
I'm thinking of selling replica of basketball jerseys.
It's definitely not on ebay, I'm thinking of setting up a website.
Basketball jerseys would display registered trademarks, brands and images, which I imagine would be aggressively protected.
If you are infringing registered Australian trademarks, expect to be closed down smartish.
I work with a guy who used to do IP work for Nintendo, and they were relentless at pursuing even small "market stall" type people who were selling their trademarked or pirated goods.
If the NBA doesn't have registered trademarks in Australia, you might get away with it for a bit longer. I know I have seen people selling european soccer team jerseys in Sydney $2 shops, presumably because Borussia Dortmund or whoever isn't motivated to protect their IP in Australia.
And the guys selling knock off Von Dutch gear in Australia went the other way - they registered legit Australian trademarks for Von Dutch on their own, and when the US company came here, they found they didn't own their own trademarks.
This, it's about trademarks. If you're selling replicas that don't have the logos etc and you aren't using the company logos or names in your advertising you should be ok.
+1 for the von dutch guy!
In the end though, I believe that Von Dutch got the trademark due to misrepresentation by the Aussie company. Also, above trademark, a company may also have copyright over its logos.
http://www.trademarkify.com.au/trademark/982960?i=VON_DUTCH-…
For some reason the papers all covered the original story but nobody realised that Von Dutch (now owned by parent company Royer Brands International) won after all.
There was an incident shown on TV news where they hauled in a Paddys Market stallholder for selling fake Man Utd merchandise.
but we still see fake items on paddys and night market every week. why they dont do inspection regularly?
In this case some Man Utd reps secretely checked out the merchandise before calling in the cops. If the rights holder doesn't lodge a complaint, nothing happens.
If the rights holder doesn't lodge a complaint, nothing happens.
Pretty much this. The cost of enforcement can often be higher than the loss in licensing revenue… it's a never ending game of whac-a-mole
I remember buying from the stall and I was surprised bcause i recognised the stallholder
That said, there is a store in the Hornsby Westfield mall that sells a bunch of U.S. sport apparrel replicas (think NBA, NFL, MBL jerseys, etc). All imported from China and the labels don't indicate they are licensed nor declare the appropriate trademark disclaimers.
Yet it hasn't been shut down thus far..
Guess it flies too low under the radar to be spotted, but you get caught / interrogated if the police suspects you.
There was an incident last year though involving 40 tonnes of fake 'Omo' washing powder.. Understandably 40 tonnes is like a cargo ship's worth of stuff so I'd guess it'd be stopped by the police, but that doesn't mean a small-time business in the city won't always avoid detection.
40 tonnes of Fake omo,
Were they trying to launder money.
It really is a dirty business, counterfeiting.
I guess it ain't as clean a living as I thought…..
Stay away from this one - wash your hands of it
Let me tell you what will happen.
You will get a letter from a Sydney-based IP firm telling you that they represent Nike and that while they reserve the right to claim damages, they insist that you pull down your website, surrender any unsold stock to them for destruction as well as give them records of all stock you have sold to date.
If you instantly throw your hands up, say sorry, promise to not do it again, give them all your knockoff shoes and you are reasonably small time, they will generally leave it at that. Note I say "generally".
This presumes that they are not successful in obtaining the attention of the Federal Police, in which case they will knock on your door. Usually you hear from the lawyer first though.
or you can set up a fake online store selling electronics (but there are no electronics -it's a scam) where payment is only made by bank deposits and no one will do anything.
Can you sell fake gear even if you tell the customer it's fake?
No.
If you're based outside of Australia and send packages to the customer you risk the customer having the package confiscated by Customs. They can and do confiscate counterfeit goods, and the customer will issue a charge back against the business.
If you're inside Australia then there's a pretty good chance Customs will confiscate the goods before you even have a chance to sell them. Even if the goods are already in Australia customers can rightfully dob you in. I was at an anime conference here where a stall holder was selling solely counterfeit goods. Someone called the police and the stall was shut down and goods taken away.
Do you really want the hassle?
Yeah this happened to me on eBay for 6 pairs of fake CK jocks… eBay shut the store down and I got a warning.. Paypal refunded my money and the package arrived anyway lol….
pretty good chance Customs will confiscate the goods before you even have a chance to sell them
I highly doubt it, Customs only x-ray and inspect something like 5% of all incoming containers.
Customs claims to x-ray all incoming packages (but not large containers/shipping containers). Even if only 5% of cargo is inspected you have a 1 in 20 chance of being caught. That means after 20 shipments you should expect to have your goods confiscated and Customs dropping around for a chat.
"Am i going to get sued by nike?"
I had a friend that did this, and he got several seize and desists from Nike & co.
Very Short Answer..NO
It is illegal plain and simple whether imported or sold locally
Its a federal crime which means if u get locked up for it there is no Parole (fed prisoners don't get parole)
here is the link to the AFP
http://www.afp.gov.au/policing/ip-crime/faq.aspx
News on a local australian crack down on counterfeit sporting goods:
http://www.counterfeitalertnetwork.com.au/news/106
And here is what u risk if court:
CRIMINAL LIABILITY
Under the Trade Marks Act 1995, it is an offence to:
falsify a registered trade mark
falsely apply a registered trade mark
alter or remove a trade mark knowing it is a registered trade mark
make a die or equipment that can help in falsifying or removing a trade mark
sell, possess, distribute or import a good, knowing that the trade mark has been falsified or removed
The Copyright Act 1968 similarly provides for criminal sanctions. Under this Act it is an offence to:
knowingly import, possess, sell, distribute or commercially deal with an infringing copy
offer for sale infringing copies of computer programs
transmit a computer program to enable it to be copied when received
The Copyright Act 1968 provides for individuals to be fined up to $50,000 and for corporations to be fined up to $250 000. The possible term of imprisonment is up to five years.
The penalties under the Trade Marks Act 1995 are sentences up to two years and fines of up to $55,000.
The Plant Breeder's Rights Act 1994 provides for individuals to be fined up to $55,000 and for corporations to be fined up to $275,000. The possible term of imprisonment is six months.
I had a friend who was selling Barcelona replica shirts on ebay and was fined around $400 due to the nike branding
You can't be 'fined'. What they did was threaten to sue and offered a settlement.
the Trade Marks Act 1995 says differently.
Let me rephrase, a private organisation cannot 'fine' you which is what the above poster is talking about. There's been plenty of threads on WP about it. What happens in the representatives of Nike trawl through Ebay, buy one of the items, checks it for authenticity then sends them a letter of demand.
i would not do it, it is illegal and such profits by the manufacturer can not be tracked. such as when nike sell the product it goes to nike or one of their companies, when someone sells a fake you dont know if its going to a little asian main in china or a terrorist group which set it up for financing.
its exactly the same as illegal downloading - if caught there are big fines.
kinda like when you buy milk from the supermarket, you don't know whether it's going to a milk farmer or an international paedophile child trafficking group ??
equating buying fakes (or illegal downloading) with supporting terrorists is a bit silly.
(to jimbobaus - no one is going to get "locked up" in a federal prison without parole for selling fake nikes.. worst case would be a small fine like the $400 mentioned above)
I agree with the supporting terrorists bit is silly, but not sure I agree that 'worst case' is $400 fine. I'd say it'd be the probable case.
Worst case is they really do set out to make an example of him, really go for criminal liability which could ruin his life. Wouldn't go to federal prison without parole, but sounds possible from what others have said, could get a criminal conviction - which would every time you want to apply for a loan, travel overseas, etc.
So, maybe not likely, but possible. So, I'd say the potential upside (profit) not worth the risks (hassles for life).
Never say never.
Got a lady friend who used to own a store on upper Bourke St in Melbourne near the parliament house, and she used to sell good knock off Prada, Channel, LV etc.
Guess what? Got caught by undercover investigators hired by those companies, and got investigated by police and sued in court and everthing else. Ended up selling off her 3 investment properties to pay for the damages.
You are warned…
I remember Dimmies selling fake football jerseys to let the less fortunate be able to support their team at live events. They were forced to top selling them. I'd be careful if I were you.
its legal as long as customers are also fake.
Dont do it! End of story!
Yeah don't do it.. you get screwed big time.
Even in China.. the 'fakies' have a slight variation to prevent getting sued.. ie:
Prada = Prado
Diesel = Oiesel
etc…. even the patterns for Louis Vitton is slightly different etc..
You can't sell copies/fakes/replicas period under registered brands. Major brands will pursue you in court if you don't accept the initial letter from there representative law firm in Australia to give up the goods & sign a deceleration etc.
If a particular brand doesn't have a registered trademark in Australia, then neither customs or anyone else can do anything about what you import or sell. But 90% of brands like Nike, Adidas & all those Italian designer labels are registered. Customs website has a list which is updated every year.
As for those market stalls selling fake LV, Gucci bags etc. They just play the numbers game. They set up the stall & import stock under various names. While there is stock that is confiscated by customs, enough of their stock (usually container load at a time)gets into the country, and the turnover is big enough to continue selling even after a shortfall (raid or customs interception).
Never ending game of cat & mouse between them.
Not entirely true about unregistered marks. If you have local reputation and can prove you have suffered harm then you can sue for passing-off.
Also some garments/articles may be protected under the designs act, rather than the trade marks act.
Replica = Counterfeit = Illegal.
It is the same in almost every country in the world. However not all countries "actively" police or enforce the laws.
It is actually illegal to knowingly send a replica/counterfeit item through the post.
Why not do as above make it obvious fake, change name etc, so it like a joke on the branding, that would be popular. lots of t-shirts sell like this taking the pi$$ out of known brands.
Personally, I think there is nothing unethical about selling counterfeits as long as the items are clearly mentioned as being fake. However, our country is controlled/run by capitalists, and these greedy profiteers will do everything to crush the little guy trying to make ends meet by peddling knock-offs.
Some example of non-high street fashion fakes I have seen recently on Ebay, sold by PRC merchants are: non-official replicas of Lord of the Rings Swords, Shields and daggers; Harry Potter wands for $9; obviously synthetic malachite with isn't described as being synthetic (real 'mined' malachite costs 4 x as much); turquoise which is actually dyed howlite (a completely different, near worthless white mineral with light brown patterns); jade which is nothing other than melted down, reformed and dyed quartz (merchants call it Malay jade); moldavite (rare glassified earth produced by a meteorite impact in Czechoslokvakia - real cost $7/gram for the lowest grade, $100/gram for good specimens) which is really just coloured and patterned common glass; Montblanc & Cartier pens for $30.
Chinese people (their middle class) loves to buy designer good and is being courted by companies like Chanel and Gucci, but in their business practices they have no qualms about stealing intellectual property. This isn't meant to be a racist offensive statement; just a summary of the way things are.
We're generally talking about luxury goods here. An $80 shirt featuring your favourite football club logo is a luxury good as it does the same job as a $10 product. If the evil capitalist has become greedy then there's a simple solution: don't buy the product. The price will fall or the merchandiser will go out of business. The business has spent considerable time and money building up a brand and product to sell at a luxury price. What gives some freeloader the right to come in and piggy back off that success and sell counterfeit goods?
Lord of the Rings and Harry Potter toys are likewise hardly essential items. If it's too expensive then don't buy it. Teach kids to have a bit of a backbone and not demand every latest toy.
I love OzBargain. No talk of the ethical delima here.
(As much as I don't care for mega corps, it is stealing really).
Why not innovate and make your own brand!?
I have to agree with the innovate part, plus Kickstarter has just launched for Aussie based projects so that's an easy way to test the market response before going debt crazy with initial overheads etc.
KickStarter FTW!!
Yes as long as the item listed matches the description
No cause it is Illegal.
I've been threatened with legal action by selling "grey imports" which were genuine (but I am not an authorized reseller of that product in Australia) - I'd hate to think what would have happened if I was selling fakes !
Classic big company bully scenario in my situation, selling fakes is asking for serious trouble.
They can't do anything, they can just tell you to stop using their pictures taken from their website, at which point you have to take your own pictures of the products. They were probably just scaring you.
This. Unless it's a book, then it's perfectly legal to sell grey imported items. You'll have to make sure that there aren't other laws which need to be adhered to (eg clasification stickers if it's a game, certifications for electronics etc).
But if you don't have the rights to sell in AU, then you don't have the right to use their copyrights (ie photos, logos etc) or their trademarks.
The problem is you get threatening letters to your place of business (and home), you get phone calls from lawyers threatening you. "If you don't have professional indemnity insurance to cover XZY product someone (ie me) might buy one of your products and have an "accident" and sue you" - was their threat to me.
Also I was threatened with unauthorised use of their trademark (which was the products name) - so by calling an ad "XYZ for sale" I was already in breach of their trademark.
In the end they offered to buy all my remaining stock back from me at my cost price if I simply disappeared from their radar, which I did.
It was basic corporate thuggery at it's best. 1 stop short of sending guys with bikes and chains around to my warehouse.
They'd never off to buy your stock off you if they thought they had a leg to stand on.
I'm not sure that is true regarding parallel imports. They should be legal to sell in Australia, they are just not sold through the distribution agreement between the owner and the distributor. If the stuff is not counterfeit ie original, then there is no trade mark infringement. The same would be true for copyright as the goods when produced would have been produced under the authorisation of the copyright holder.
I'm not an IP lawyer but just because you have original goods doesn't give you the right to trade using someoneelse's mark. The owner of the mark has the right to have it applied etc.
You can state a fact eg 'Nike Jordans size 14' but you wouldn't be able to use the logos etc without permission.
Yes that is correct, if what you are saying is that it is permissible to sell the original Nike Jordan shoes, but not call yourself the 'Nike Shoe Shop' (including the Nike swish device in your banner etc), because the use of the Nike Trade Mark to describe your business would not be authorized use of the Nike trade mark.
Don't do it. I know someone who sold counterfeit products. The company's lawyer contacted him and demanded him to show all eBay, PayPal, and NetBank transactions for all sales.
He had to refund all customers and pay $20,000 to settle out of court.
sorry, a pure hypothetical question
what if I bought some real Nike shirt at bargain price at a US Nike outlet store
are we allow to sell them on ebay? do we have to get approval from Nike first?
does it makes a difference if I bought it from a Australian Nike outlet store?
There shouldn't be anything illegal about importing a genuine Nike product.
Nike could have parallel importing agreements in place that will prevent you from selling US stock, best to research it.
Hook me up with a pair of Mikes!
Well Gucci just won like a $80 million lawsuit against I think it was close to 170 stores/suppliers who were selling counterfeit items.
Whether any of this was local or not, I don't know but it's probably best to stay away from it.
Just Don't do it.
Set up an online website like silk road and no one will touch you for years
Am i going to get sued by nike?
I think Nike will tell their lawyers to Just do it.
Dont do it, not worth the risk, there are plenty of other things you can source, sell and make a profit off legally. I would never buy fake stuff because I know I can get the real things often as cheap as the fakes anyway!
I hate how fake sellers claim to be selling AAA grade replicas, as if there is some kind of grading standard for knock off stuff and that because their fakes are 'higher quality' they are somehow more honorable than the sleezy pirates tricking people. Who would ever buy fake Nike shoes etc when they can buy the real thing from Start Fitness/Eastbay etc for probably the same money.
I just brought a Samsnug phone…should have known buying from a man with a trench coat off the streets.
Short answer yes.
Longer answer..
Probably not if you're based outside Australia