‘Superfake’ Products Test Consumers and Brands in Trademark Law

One pack of ground coffee featured a watercolor illustration of rolling green hills and quaint, red-roofed cottages. Another presented—a goat? a llama?—surrounded by swirling psychedelic designs and a Woodstockian font. There were more minimalistic designs, too, with quietly elegant lettering, and a number of packages with a folksy, approachable vibe. Standing in the aisle of a New York City supermarket, I was left to wonder: What kind of a coffee drinker was I?

Companies invest heavily in storytelling, creating associations between their branded products and the people who buy them. When people purchase products from one brand over another, they are, consciously or not, responding to this messaging. I see myself as someone who… While there is a functional aspect to consumer purchases, and price is an important consideration for most, our response to marketing cues is equally significant.

One powerful example is “superfake” handbags—counterfeit designer bags of good enough quality that they are not easy to distinguish from the real thing. If quality or aesthetics were the point, no one would buy a counterfeit designer bag. There are many attractive and well-made handbags at various price points.

Brands hold intangible, illogical power. They are symbols, and symbols are everywhere in society, especially in clothing and accessories. All are visual cues, a kind of shorthand for where we belong, who we are, and what we believe or value.

Against this backdrop, trademark law embraces two societal values: fair competition and consumer protection. Allowing companies to claim exclusivity over a symbol is only in connection with specific goods and services, and only as long as that symbol is in use. The law encourages businesses to invest in the quality and reputation of their offerings.

The consumer protection principle in trademark law is equally important. Trademarks must identify the source of a product. When a mark “fails to function as a trademark” by identifying a source, the US Patent and Trademark Office refuses registration. In a Supreme Court trademark infringement case from 1883, the court observed that a trademark is “both a sign of the quality of the article and an assurance to the public that it is the genuine product” of the owner’s manufacture, and “in its exclusive use the court will protect him against attempts of others to pass off their products upon the public as his. This protection is afforded not only as a matter of justice to him, but to prevent imposition upon the public.”

That’s where counterfeit designer bags should create more consternation than they often do. Counterfeit goods hide behind other brands—the shopping equivalent of an anonymous troll on the web. There’s no way to look up the names of these companies or their executives, or perform even cursory diligence about their activities. The types of people and companies active in these shadow business enterprises are not usually the ones complying with labor, tax, environmental and other laws.

Most of us wouldn’t feel comfortable purchasing counterfeit pharmaceuticals, because we don’t know what’s really in them. Trademarked goods, on the other hand, are traceable to specific companies, which in turn are subject to public criticism and boycotts. They are legally incorporated entities that pay taxes, face scrutiny for the way they manufacture and promote their products, and must comply with country of origin, fiber content, and other labeling requirements. They get sued, and sue each other. They face government penalties for non-compliance. Their employees unionize and strike. They are the subject of critical documentaries. They can and do get their marketing wrong: sometimes, the messaging lands with a thud, or alienates customers in a misguided attempt to attract new fans or, in marketing speak, “stay relevant.”

Instead of debating the value of designer handbags, the public interest focus should be on transparency and compliance—and as long as a branded product is the real deal, consumers are empowered to demand both.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Cynthia Martens is an intellectual property attorney at Katten with a focus on trademark and copyright in the fashion and beauty industries.

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