Counterfeit Goods: Is it Illegal to Sell or Buy Them in Singapore?
What are Counterfeit Goods?
Counterfeit goods are products which bear a trademark, but where the trademark owner’s permission was not given to use the trademark. For example, a bag which has the “COACH” trademark on it, but which was not made by Coach or with Coach’s permission would be a counterfeit.
Counterfeit goods also include products which bear marks that are similar enough to the trademark to cause confusion to the public who may mistake the counterfeit for the original.
While a bag labelled “COUCH” may not be considered a counterfeit since the word is significantly different from “COACH”, a bag labelled “COÅCH” may be counterfeit although the “Å” is not identical to “A”.
How can I tell if a product is counterfeit?
It can be incredibly difficult to tell when a product is counterfeit since it is possible for a manufacturer to create an entirely identical replica of a branded good, including its trademark.
In some cases however, it is possible to distinguish a counterfeit good from a legitimate good by scrutinising the labels, materials used, or other details on the product and comparing these with the features of the legitimate good.
Nevertheless, the best way to tell if a good is counterfeit is if its price is “too good to be true” by being significantly cheaper than the product purchased via official channels such as the trademark owner’s own shop.
The most common counterfeit goods are bags, clothing, perfumes, and shoes from luxury brands, so you should be especially careful when purchasing such goods.
Is Selling Counterfeit Goods Illegal in Singapore?
The following infographic summarises the legality of selling and buying counterfeit goods in Singapore and their applicable penalties. You may click on it to download it in a new tab.
Under section 49 of the Trade Marks Act (TMA), it is a criminal offence to sell counterfeit goods in Singapore.
This includes reselling the products on online platforms. For example, in March 2019, 4 women were arrested for selling luxury brand counterfeit goods and apparel online.
Moreover, all trademarks registered in Singapore are protected under Singapore trademark law. Well-known trademarks (e.g. they are widely-recognised by their target audience in Singapore) also receive protection even if they have not been registered locally.
It is therefore also an offence to:
- Counterfeit the trademark itself either by creating a copy of it or altering the trademark on a legitimate good
- Apply a trademark to a good without the permission of the owner of the trademark
Additionally, you are guilty of an offence if you import counterfeit goods or possess the means to manufacture counterfeit goods.
All the above offences are punishable by a fine of up to $100,000, or to a jail term of up to 5 years, or both. For the offences of selling or importing counterfeit goods, the fine is pegged at $10,000 for each counterfeit product sold or imported, subject to the same overall maximum fine of $100,000.
Seizure of counterfeit goods
Counterfeit goods may be seized by the authorities at their importation point into Singapore in two situations:
- If the owner of the trademark provides the authorities with information about the importation of counterfeit goods.
- If the authorities reasonably suspect that the goods are counterfeit goods.
Seizure at the point of importation can occur regardless of whether you are bringing in counterfeit goods for sale in Singapore or for personal use, as the TMA does not state that the authorities’ power to seize goods is limited to those imported for the purpose of sale.
The authorities may also seize counterfeit goods which were owned by someone who was found guilty of an offence under the TMA. In the case of the 4 women arrested for selling counterfeit goods online (mentioned above), about $30,000 worth of counterfeit goods were seized by the police.
Alternatively, the police may also get a warrant from the court to search suspected premises for counterfeit goods and seize any that they find. This generally occurs when the police raid a shop suspected of selling counterfeit goods and usually also results in the arrest of the alleged seller(s) of the counterfeit goods.
If no court proceedings in relation to an offence under the TMA commences within 6 months of such seizure, the goods will be returned.
Are there any defences that I can make against the offence of selling counterfeit goods?
There are two defences to the offence of importing or selling counterfeit goods.
First, you can try to prove that you took all reasonable precautions against dealing in counterfeit goods, such that you had no reason to suspect that the goods were counterfeit. For example, if you had inadvertently purchased the counterfeit goods but did so only after:
- Carefully inspecting the goods to your best ability; and
- Checking with other retailers, which had previously purchased such goods from the same seller, on whether they had any reason to believe that the goods were counterfeit.
If you use this defence, you may be required to provide the authorities with all the information about the source of the goods to avoid being convicted of the offence.
Second, if you can prove that you acted innocently. This requires showing that you had no intention to deal in the counterfeit goods such as having no knowledge of the existence of the trademark that was counterfeited.
Can I be sued for selling counterfeit goods?
Section 31 of the TMA allows the owner of the trademark to sue a seller of counterfeit goods for compensation in the form of damages as well as any profits made from the sale of counterfeit goods.
The court may also grant an injunction that prevents the seller from dealing with the counterfeit goods, and compel the seller to destroy all other counterfeit goods in his possession.
Will I still be liable to be sued if I disclose that my product is counterfeit?
The owner of the trademark can still sue you for trademark infringement, as the counterfeit product still uses the trademark without his permission.
However, if you disclose that the product is counterfeit and the trademark owner is aware of it but fails to take any action, this may constitute implied consent to sell the goods bearing the trademark.
Such implied consent could arise even without disclosing that the product is counterfeit. If so, the goods would no longer be considered counterfeit under the law, since there is implied consent from the trademark owner to use the trademark.
Is Buying Counterfeit Goods Illegal in Singapore?
Buying counterfeit goods is illegal if the purchaser does so with the intention of selling, trading or manufacturing the counterfeit goods. This applies both to goods bought in Singapore and goods bought overseas and imported into Singapore.
While buying counterfeit goods for personal use is not illegal, buyers who purchase counterfeit goods overseas and attempt to bring them into Singapore still face the possibility of having their counterfeit goods confiscated by the authorities at the point of importation as mentioned above.
What can I do if I’ve been deceived into purchasing a counterfeit product?
As the selling of counterfeit goods is a crime, you should immediately make a police report.
In addition, since you paid to receive a genuine product but instead received a counterfeit one, this may constitute a false claim or misrepresentation by the seller that the product was genuine that you can take action against the seller for.
Under the Consumer Protection (Fair Trading) Act, you may also be able to get a refund as the seller’s deception may constitute an unfair sale practice.
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