If there’s one thing we’ve learned from either the war on drugs or the RIAA’s fight against music piracy, the most effective way to fight crime is to punish the end user. That must be why Nike is using a similar strategy in the UK to combat counterfeit footwear.
Last year, a shipment of faux Nikes was stopped at the UK border, prompting the company to take legal action against all the individuals who had ordered the shoes. Under UK law, it is a trademark violation to import products that infringe on an existing trademark.
All but one of the people involved put up no defense. The one stalwart claimed, “I ordered training shoes over the internet believing them to be authentic. I had no idea they were counterfeit. I have never received any goods and will not be ordering any more.”
But the judge wasn’t buying it:
Whether or not the defendant believed the goods were authentic is irrelevant to the question of trade mark infringement. Whether the goods are infringing goods or counterfeit goods is an objective question. The Defendant’s state of mind does not matter. Equally the Defendant’s state of mind is irrelevant to the question of importation.
After the man asked for the case to be moved from the patent court to a local county court, Nike asked for a summary judgment. The judge agreed, stating that the “Defendant has no real prospect of defending the claim.”
But while the judge sided with Nike, he did question the harshness of their actions:
It may be questioned whether the sledge hammer of these proceedings is necessary in order to crack this nut of this magnitude but Nike’s representative Mr Elmslie explained, and I accept, that brand owners in this situation have no realistic alternative to enforcing their rights this way. Accordingly although this appears to be the smallest of cases, nevertheless the Claimant is entitled to bring proceedings.
In the end, the man only had to promise, which he’d actually done in his original defense, that he wouldn’t do any more infringing Nike’s trademark.
What do you think: Is this the best way for Nike to deter people from buying counterfeit shoes?