My takeaways from the USPTO’s Forum on Brand Protection and Anti-Counterfeiting Strategies

The Forum on Brand Protection and Anti-Counterfeiting Strategies held last week at the USPTO  was an eye-opening event for me personally.  Below is a quick summary of my takeaways, followed by a longer version of the discussion. 

Summary

During the forum, there were two main topics discussed.  The first topic discussed how counterfeiters are successfully using ecommerce to trick individuals into buying their products instead of the genuine ones.  Not only do the pictures they present depict genuine items, but the delivered products are looking more and more like the real thing.  Generation Z has expressed ethical concerns about purchasing these products. However, because of their tendency to have limited funds, they can be persuaded into purchasing these items.

The second topic was about new technologies that are being used to prevent counterfeiters from prevailing.  Specifically, machine learning and AI are being used to identify the counterfeit products. 

Opening Remarks from Director Iancu and Congress Chairman Hank Johnson

The forum began with opening remarks of Director Iancu. He indicated that the value of the counterfeit good is over $500 billion per year, representing about 3.3% of the total global trade.  20% of seized goods refer to the US trademark.  Counterfeiters are increasingly moving to online platforms and are becoming increasingly more difficult to detect.

Congressman Hank Johnson who chairs the IP and Internet Committee was also present.  He appeared to have a strong interest in enhancing IP rights in the US and increasing our ability to enforce and fight fraudulent goods, particularly from China.  He was well briefed about the issue and the increasing threat that fake goods have on the US economy.  He indicated that just as the marketplace changes, the counterfeiters are changing with it and they have become more innovative and harder to detect.  The counterfeits used to look fake and much cheaper than the genuine goods; however, now they look identical to the real goods and priced just slightly less than them.  Attached, you will see a few pictures from the USPTO museums showing the striking similarities between the real and fake goods.

Congressman Johnson expressed concerns that overtime, selling counterfeits online will erode the consumer confidence.  He noted that getting ahead of the counterfeiters requires an effort from Congress, the executive branch, brand owners, and consumers.  It is not enough to be reactive. To prevail, a proactive approach should be taken in which legitimate businesses and the government work together. 

Fighting Counterfeits in a Global and Online Market:  Will It Always Be an Uphill Battle?

This was a hot topic.  The panelists included:

• Cynthia H. Braddon, Head of Communications and Public Policy, Transnational Alliance to Combat Illicit Trade,
• Ayala Deutsch, President-Elect, International Trademark Association (INTA),
• Gail Podolsky, Chair, Anti-Counterfeit Committee, American Intellectual Property Law Association
• Sanjiv Sarwate, Chair, Anti-Counterfeiting Committee, Intellectual Property Owners Association

It appeared that they all agreed that this is not a battle that we are going to win anytime soon – if at all.  Their remarks shared one key factor and that was consumer awareness.  Reaching out to the public is key to help consumers informed and to ensure that their hard-earned money is well spent.  However, they acknowledged that this becomes increasingly difficult when the counterfeiters show a real picture of a product online but deliver a fake to the consumer. 

They noted that the recent studies show that generation Z is conflicted about this issue.  They are more conscious about counterfeit goods and find the practice unethical.  However, because they are more worried about money, the cheaper products sometimes prevail over their ethics.  The panel discussed that education here is particularly important to inform consumers that counterfeit products not only affect their ethics, but their safety, jobs, and national security. 

The most noteworthy comments, in my opinion, came from Ms. Gail Podolsky of AIPLA.  To battle the counterfeiters, AIPLA is focusing on three fronts:  

1. Advocating for the expansion of the Intellectual Property Rights e-Recordation program to include design patents.  The program presently enables the brand owners to record copyright and trademarks with the U.S. Customs and Border Protection (CBP) division of the Department of Homeland Security.  This is a powerful program/shield  for the brand owners against counterfeiters and helps agents to identify and stop counterfeit goods at the border. 
2. Advocating for a better communication between ecommerce platforms, CBP and brand owners.  This is both in terms of the amount of information shared and the format of the information shared.  The information shared from CBP still comes in mail.  It would be better if this were done electronically (for example, through Excel spreadsheets) to enable faster incorporation into the system of the brand owners.
3. Better technology (e.g., blockchain, QR code).  Using QR codes can allow for quickly identifying real goods and systematically stopping counterfeits. 

Innovation in Brand Protection:  Utilizing New Technologies Against Counterfeits

Another interesting topic was related to innovations in brand protections.  The panelists included:

• Tom Jay, Vice President, Sales and Business Development, SICPA Securink Corporation
• Brian J. King, Director of Internet Policy and Industry Affairs, Mark Monitor
• Michael J. LeMieux, Brand Protection Consultant, Yellow Brand Protection
• Michael C. Maier, Senior Group Counsel NA and Senior Group IP Counsel, Avery Dennison
• Vidyuth Srinivasan, Chief Executive Officer, Entrupy

All of them use machine learning and AI to identify the counterfeits and inform the brand owner. They use AI for risk-based analysis, which enables effective scoring of returns. Score results are based on a number of factors, such as images used, channels that offenders are present on, links to office data, etc.  They look at data not just from Amazon and eBay, but also from tweets that are used for marketing. 

One of the companies, Avery Dennison, provides a retail branding and information solution.  Products are given an identity and that identity can be used to engage with the consumer (where it was manufactured, how, what material was used).  They use labels with a digital identity and static identity. Using this mechanism, they can identify when the product is produced and what was in it. As a result, even if counterfeiters use the real serial number, this company can help brand owners to identify a mismatch between the serial number on the products. 

Another company, Entrupy, uses AI and cloud technologies to identify fake products.  It allows taking a picture of an item and uploading it to the cloud, where they use AI and machine learning to determine whether the item is fake or genuine.