Mon 29 Apr 2024

Counterfeit Cosmetics: What is really in your make up bag?

Choose Safe not Fake’ is the latest targeted awareness campaign from the Intellectual Property Office (IPO). The campaign focuses on counterfeit cosmetics and the risks that these products place on consumers.

Counterfeit products are produced with an intention to deceive consumers. The ‘fake’ product is designed to imitate those which have been manufactured and approved by a legitimate brand. These products should be differentiated from those commonly regarded as ‘dupes.’ Dupes have the potential to infringe intellectual property rights but are rarely an exact replication of a branded product and are generally not a risk to health.

Counterfeit products present many issues for brands in all industries, particularly in relation to intellectual property rights and reputation. However, the presence of counterfeit products in the cosmetic industry is creating a real danger for consumers. Consumers are being lured in by the bargain prices for the counterfeit cosmetic products and are often purchasing under the false impression that the products have been manufactured by the ‘genuine’ brand. However, the manufacturing sites and the ingredients for the counterfeit products are often horrific and may have been produced in a cement mixer with traces of toxic ingredients (e.g., arsenic, lead and mercury) as well as rodent urine and equine faeces. This is the reality revealed by the IPO and the Anti-Counterfeiting Group. Consumers purchasing such counterfeit products are being subjected to serious health risks.

The new campaign by the IPO seeks to shine a light on the dangers associated with counterfeit cosmetics and help consumers understand the real price of their bargain products.

Illegitimate websites taking advantage of the profit that can be generated from fake products are everywhere and there are signs to be aware of when considering the legitimacy of a website offering beauty products for sale, for example:

  •       significantly lower prices than the recommended retail prices for the product.
  •  lack of a secure ‘https’ connection.
  •  poor quality consumer rights information.
  •  the use of new generic top-level domains, for example, instead of .com or .net the domain may include .store or .shop or .tokyo; and
  • the offer of an option to select a local currency when purchasing.
  • The age-old mantra of ‘If it seems too good to be true, it probably is’ must also be at the forefront of the mind.

As well as illegitimate websites, there are many social media sites promoting and selling counterfeit products. For example, Tik Tok Shop, a feature which encourages users to purchase products which are being advertised by influencers, has become inundated with fake products. Over recent years there have been various reports from customers of harmful products being sold, including skin care creams which are intended to be issued through prescription only. Tik Tok has an anti-counterfeit policy in place, but more enforcement action is required to prevent this fraudulent activity predominantly targeting the younger generation.

It is essential that enforcement action is taken against infringers to deter the creation of counterfeits. This has been recognised by the IPO and it is very encouraging to see its commitment to supporting intellectual property rights holders through various campaigns, such as ‘Choose Safe not Fake’ and its Counter Infringement Strategy 2022 to 2027.

The IPTC team at Morton Fraser MacRoberts would be happy to assist in providing advice on legal queries relating to Intellectual Property protection in the cosmetic and beauty industry and in general. Should you have any queries, please do not hesitate to get in touch with Euan Duncan, Partner in the IPTC team at Morton Fraser MacRoberts.

This article was co-written by Erin Thomson, Trainee Solicitor.

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