Jun 2022

Anti-Counterfeiting: engaging with law enforcement

For rights holders attempting to stop counterfeiting of their products, engaging with law enforcement has always been a frustrating affair. Law enforcement authorities have many priorities and trying to get “on their radar” proves difficult. In general, law enforcement priorities revolve around safety of the public, and most police forces in Canada (and probably around the world) are tracked statistically and judged on their ability to respond to the Seven Major Crime Indicators, as follows:

  • Assaults.
  • Auto theft.
  • Break and enter.
  • Homicide.
  • Robbery.
  • Sexual assault.
  • Theft over $5,000.00.

Where does anti-counterfeiting fit in? It does not. 

In order for this type of crime to be taken seriously rights holders have to get the attention of law enforcement authorities. How do they do this? 

As police focus their efforts on crimes that involve public safety, when I tried to interest law enforcement in counterfeit luxury goods cases, I was often told “it’s only a purse, no one’s getting hurt”. This is certainly not the case. By way of example, one of my first counterfeit cases was initiated by an investigation into traditional organized crime. While we were emptying a warehouse full of stolen tractor trailers and guns, we could hear sewing machines and individuals talking upstairs. I asked a uniformed officer who was upstairs, and he told me, “just some old ladies making suits”. I went upstairs and found dozens of ladies set up in a room with multiple sewing machines making counterfeit Versace, Burberry, and Armani suits. We seized several million dollars of counterfeit products in that case. While speaking with the Proceeds of Crime investigator he was able to piece together that they were making more from the counterfeiting than they were from the stolen tractor trailers and guns. This money helped fuel a criminal enterprise that was largely impacting public safety and was therefore worthy of a police investigation. 

In an effort to attract more police consideration we must focus on more training and better reporting. The following steps will assist right holders in working alongside law enforcement to successfully tackle counterfeiting. 

Training

Most law enforcement officers are well-versed and trained in investigating the seven major crimes. They do this from the time they are hired and continually receive training throughout their career. Rights holders must supplement this training to get buy-in from law enforcement. This training can be done with formal training events or more informal, small group training. 

Formal training might be a once-a-year training conference, where selected officers from various regions attend. This training is usually several days and is very detailed and structured. This type of training is excellent for the officers that are able to attend. The downfall to this training is that it is usually costly, both in time and expense, for the police department to send a large group of officers. Therefore, with formal training events, the result is that only a limited number of officers are trained well. 

Informal training, on the other hand, could have more impact. It might consist of small training sessions where rights holders attend at a particular location (i.e. law enforcement offices or a regional training facility) and directly conduct training with the officers on their schedule. In Canada, most law enforcement agencies have weekly or monthly training days for their officers that last between 15 minutes to two hours - depending on the service. This training is more attractive to law enforcement authorities in terms of cost and time, easier for more officers to attend and the result will be a larger number of officers who have experienced some focused anti-counterfeiting training. 

In my experience, informal training at a police division has the most benefits. When you train at a division you get more officers, and they are relaxed because they are in their own environment. You will get to meet their supervisors and eventually build a relationship with them. This makes it easier when contacting them about a prospective case. 

How do you prepare for training? I have found that the best way to do training is to personalize it. Whether the training is formal or informal, it is best to perform a market survey in the neighborhood before the training. This will identify locations of interest for both you and the officers. It is good practice to show an example of counterfeiting that is fresh and at a target location in their jurisdiction. This will get their attention. I have found that within an hour or two of completing a training session some officers have gone to the locations raised in the session and conducted investigations while the training was still fresh in their minds. 

It is also useful to provide two types of training material at these training sessions: a “cheat sheet” as well as an electronic link. Almost all officers carry a notebook where they could store a small cheat sheet about your product and access it during investigations. Second, it would be useful to provide a link to an electronic training manual that is more detailed. Being electronic makes it more environmentally friendly, easy to update, and preferably has some sort of password or unique code to keep the materials confidential.

Reporting

Hopefully, you have built a relationship with law enforcement as a result of training as outlined above. Now you can reach out directly to an officer to report a counterfeiting incident. If you do not have a direct contact with law enforcement, perform research and try to locate someone who does have a relationship. This will go a long way. 

It’s important to provide a full and comprehensive initial report. The factual, chronological and victim impact information to be provided for law enforcement to start an investigation will be similar in any jurisdiction, for example:

  • Information about the person reporting the counterfeiting incident (name, date of birth, email, phone, relationship to the victim of counterfeiting). 
  • Information about each potential witness (including contact information). 
  • Information about the rights holder(s) / victim (including contact information). This will include both the registered name and the commonly used name, as well as what they do, where they are based, and full details of the protected brands that have been counterfeited. 
  • Any information that has been gathered about the suspect and the counterfeiting event. 
  • Finally, there should be a conclusion focusing on how the counterfeiting is affecting the rights holder (Victim Impact Statement) and what the rights holder would like done. Always try to include a victim impact statement in your initial report. If an investigator can see how it is affecting your brand they will have more reasons to prioritise your case. 

Ensure that you report all incidents you want investigated and, equally, you should report all incidents that your brand investigated and resolved civilly (save and except any civil nondisclosure order). Why report it all? In checking with a major police service, I requested the number of counterfeit cases reported in a year. I was advised that there were “only 6”. Of a service that had 185,000 reports – only 6 were for counterfeiting. So, if all types of reports obtain the same amount of attention, that is less than 1% on counterfeiting. When I surveyed a few rights holders, I discovered that they had hundreds of possible reports but did not end up reporting them because they assumed police would not be interested. If we report nothing, they can do nothing. We can only complain if we have performed the first step.

A Police Crime Analyst in Canada confirmed this theory. If law enforcement suddenly sees a rise in a non-Major Crime Indicator offence, they will wonder why and assign resources into solving that issue (one other thing law enforcement gets rated on in Canada is their “solved” rate for reported offences). 

Investigation

After the rights holder has assisted in training officers and has reported the criminal counterfeiting in detail how do you help make the police investigation as seamless as possible?

You need to give law enforcement the investigation already completed - as much and as thoroughly as possible. Within the reports you should include statements from any witnesses as well as any documents referenced in the report. These documents should include copies of trademarks and copyrights (not sworn statements or certified copies - these are not needed yet). You should also include any investigative reports as well as online investigative reports. You must have done your due diligence and located all the online evidence that is available. Remember, the police investigator may have 100-200 cases to look at, therefore you should make yours one where everything is already done (to the best of your ability). Remember to cite the source of all documents - sourcing a document to its original creator or the original location may be fresh in your mind now, but will it be there in two years when you are possibly on the witness stand? Something to remember when organizing any investigation. 

Police have limited budgets as well as limited storage space and investigators. Assist them with as much as you can. By way of example, a typical market raid I undertook required 30 officers, 12 hours and 3 property trucks. This was monumental and very time consuming. As I learned, and had better relationships with rights holders, I changed my tactics. My last market raid consisted of 3 police officers and about 15 rights holders. With the use of an assistance order associated to the search warrants, the judicial officer signing the warrant allowed the rights holders to be tasked with directly assisting. What did they assist with? They did open-source investigations and provided the reports to me. They did undercover purchasing and provided statements of authenticity to me. 

At the time of the execution of the warrant the rights holders attended and once the scene was secured, they assisted in evidence collection and inventorying. This was all overseen by a police investigator for court continuity purposes. Upon collection of all the exhibits the rights holders transported them back to secure locations for storage pending trial. This reduced the manpower and logistical concerns prevalent with these investigations. 

Now, in the private sector, I reach out to Police Services and provide them with the information that we need in order to better assist them. I get great help from law enforcement when they realize rights holders are willing to take on some of the burden. 

Conclusion

In closing, when dealing with law enforcement you must educate them first - this is a problem that affects the citizens they serve. Rights holders and their counsel/investigation team must provide detailed information that helps them prioritise your investigation, so that it receives the proportionate effort that you require. We must always think of them as part of the team and be willing to shoulder a bit more of the investigative burden than we are used to.  

A final story. An investigation I was involved in in the mid 1990’s involved a market raid. This market raid involved 5 officers over the period of several weeks doing surveillance, background work and search warrant preparation. On the day of the raid, a few rights holders attended the open market. This caused a large amount of animosity between the market owners, citizens and the police. Almost half of our energy was put towards officer safety due to irate citizens and shop keepers. Years later after becoming more adept at these investigations, I attended the same market again on enforcement. This time, I had the rights holders perform the surveillance and the under-cover purchases. On the day of the warrant execution, we had the judge authorize the rights holders to enter and assist. We executed the warrant when the market was closed. This warrant was almost stress free and only involved three officers.  A “win, win” for the police and a better public relations victory for the rights holders!  

Comparative Guide


Author


EXPERT ANALYSIS

Chapters

Brazil

Tânia Aoki Carneiro

Canada

Lorne M. Lipkus
Melissa J. Tarsitano

China

Epstein Drangel - IP Counselors Beijing

Greece

Alkisti-Irene Malamis

Israel

Roy Kornick

Italy

Graziana Ercolanelli
Monica Bucarelli

Mexico

Diana Martínez
Roberto Arochi

The Netherlands

Fleur Boom
Gie van den Broek
Iris van der Wal

Spain

Ana Padial
Gonzalo Barboza
Miriam Anidjar Mogeda
Patricia Ramírez Melgen

Ukraine

Alexander Pakharenko

United Arab Emirates

Felicity Hammond
Munir Suboh

United Kingdom

Fiona Lawson
Simon Barker

United States

Ashly E. Sands
Danielle S. Futterman
Gabriela N. Nastasi
Jason M. Drangel
Kerry B. Brownlee

Uruguay

Agustina Viera
Daiana Pereira
Lucia Cantera
Virginia Cervieri

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