Unwitting or not, landlords are key intermediaries in the US$917 billion global trade in counterfeit goods. Here are several steps landlords can take to combat illegal economic activity.
On June 6, 2018, the international community is marking World Anti-Counterfeiting Day—a moment to raise awareness of how counterfeiting hurts economies and consumers across the globe. For both legitimate and illegal commerce, landlords play a critical role in global supply chains by providing operators places to manufacture, store and sell products.
In large malls, shopping complexes or flea markets around the world—many of which are notorious for the sale of counterfeit products—operators selling counterfeit goods depend on landlords in order to connect their illegal and sometimes hazardous goods to the public.
In recent years, law enforcement has increasingly shown its willingness to hold landlords liable for the illegal activities taking place under their roofs. In response to this trend, ICC’s anti-counterfeiting arm, Business Action to Stop Counterfeiting and Piracy (BASCAP), recently published Best Practices for Landlords, Governments and Enforcement Agencies—a blueprint for all parties to effectively remove fake goods from physical markets.
Here are five steps that landlords can take against counterfeiting:
Know your tenants
While governments already require landlords to perform due diligence checks on tenants in many cases, often for immigration violations or money laundering activities, carefully screening prospective tenants’ backgrounds and financial information should be part of standard due diligence regarding counterfeiting and piracy as well.
In their renting agreements, landlords should be sure to check the given identity and contact information of prospective tenants, which could form part of wider due diligence processes that include elements from Know Your Custom programmes. Such checks would also help prevent other illegal activities taking place on landlords’ premises.
Spell it out
To help protect themselves and dissuade prospective tenants bent on selling counterfeit goods, landlords should update or amend the terms and conditions of their lease agreements so all existing and future licenses contain clauses specifically prohibiting activities related to counterfeit and pirated goods to take place on the leased premises.
In its paper, BASCAP has provided model lease provisions that landlords could use in their deeds.
Spread the word
Beyond the legal agreements they enter into, landlords should ensure that their policies against counterfeit and pirated products are publicly-visible to both vendors and consumers. This could take the form of physical signs on the premises leased and by sending copies of the policy to all permanent tenants every six months.
Keep watch and report
As part of their regular safety and compliance checks, landlords should diligently monitor their premises and the wider market to detect tenants that are selling counterfeit goods. Where counterfeiting activity is suspected, landlords should report possible infractions to rights holders and law enforcement through established mechanisms.
To protect consumers, landlords could also post warning notices regarding the consequences of selling or purchasing counterfeit goods.
Reach out to brand owners
To protect consumers and legitimate sellers, and to maintain the integrity of marketplaces, landlords should establish cooperative working relationships with brand owners to facilitate the detection of counterfeits, remove infringing goods and sanction those engaging in such illegal activity.
If a landlord observes what are suspected to be counterfeit goods but cannot be certain of their nature, an appropriate and helpful step would be to immediately provide brand owners (or their legal representative) with the name, contact details and location of the seller along with a photo of the product in question.
Alongside guidance for landlords, the BASCAP paper also outlines best practices for governments—such as establishing clear and precise landlord liability conditions—and law enforcement agencies. The consistent and enduring application of these practices by all actors is the best defence against the global trade in counterfeit and pirated goods.
Turning words into action:
BASCAP is launching a new and global landlord liability project aimed at engaging landlords to rid their respective markets from the trade in counterfeited and pirated goods.
The new initiative will be launched and handled at national level in several countries running in parallel. Countries will be selected based on the following criteria:
– The importance of market trade in the country;
– The legal feasibility of the project taking into consideration national laws and case law;
– The visibility of the market;
– Both publicly and privately owned markets.