Wednesday, July 7, 2010

Aussie websites cash in on counterfeits

[Jeweller Magazine, July 2010]

Jeweller has discovered that Australian-based websites are openly selling counterfeit watches and jewellery from well-known brands under the guise of “replicas”.

Investigations by Jeweller have established that a local website – www.***Replica*** – sells exact copies of well-known brands including Tag Heuer, Breitling, Omega and Rolex.

The website is registered to a company called Brantley Pty Ltd and Australian Securities and Investments Commission records show the company as having two, Sri Lankan-born, directors; Kristiaan Martenstyn and Peduru Jayalath.

The registered address of Melbourne-based Brantley Pty Ltd is Unit 1508, 18 Waterview Walk, Docklands and the website lists a telephone number as +61 414 015 405 and makes the following claims; “We are Australia’s #1 Replica Watch Retailer, 1 Year FULL Replacement Warranty, 7 Day Risk-Free Money-Back Guarantee.”

Last week Jeweller contacted Martenstyn, who confirmed that the company had been operating for two years but claimed his actions did not breach any Australian or international laws. He went as far as describing his business as operating in a necessary industry because consumers demand the product.

“I wouldn’t call it counterfeiting,” Martenstyn said, adding that his products were “high-end replicas” produced in Geneva, Switzerland. Interestingly states, “We say NO to dodgy ‘fakes’ from Asia.”

According to intellectual property expert Lisa Egan, a senior associate at law firm Middletons, assessing whether product is counterfeit is quite straight-forward.

“If a business is using brand names without any authority [form the brand owner] then it’s likely to be a trademark infringement,” she said, adding that selling exact copies could also be a “design infringement”.

Egan confirmed that the term “replica” was incorrect – copies carrying a brand’s logo are classified as “counterfeit” goods.

Martenstyn justified his operation by claiming the website “helps” the watch brands.

“People who buy from us, they are not going to buy the original, so it doesn’t directly affect the trademark owners. In fact, it helps them,” he said.

Egan said the only reason the site could remain online was if none of the affected brands had taken action.

“It’s up to the owners of the brands to take action against it and have that content removed,” she said.

Martenstyn claimed he had never been contacted by any of the brands featured on his website.

“We’ve never actually had any issues at all. If we were to have any sort of issues with the trademark holders we are happy to work to meet a resolution,” he said.

The blatant nature of such operations raises questions about why the websites are allowed to remain online in Australia, given the potential damage caused to the brands’ reputation and integrity.

Interestingly, Rolex managing director Richard De Leyser said he was aware of the website.

He refused to comment on the matter any further, but said: “We take any infringement of our copyright very seriously.”

Martenstyn said he would continue operating the website for as long as his business was profitable.

“The reason we are in business is because consumers demand the products,” he said, adding: “The day that consumers no longer wish to purchase such goods, that’s when we wouldn’t supply them any longer.”

Rather than taking a low-key approach, further investigations reveal the company appears to be ramping up its operations, having recently advertised for two customer service representatives.

“We are looking for two new members to join our dedicated and friendly team that specialises in supplying high-end luxury goods such as jewellery, timepieces and paintings,” the online advertisement reads.

Egan said there is a number of steps companies can take to protect their intellectual property from online counterfeiters.

“The first port of call is to send a letter to the operator of the website,” she said, adding that Google can also be contacted to have a website excluded from search results.

“If that’s not dealt with appropriately then court proceedings could be issued.”

Egan said responsibility lies with the brands to protect their own copyright.

“I think brands need to be really vigilant in monitoring these websites. It’s really about the brands taking a proactive stance and making sure they’ve got their brand appropriately protected,” she said.

Martenstyn stressed that he had not been contacted by any of the brand owners about his website and added, in an interesting twist of logic, that he believes that his business activity is legal because no one had contacted him to say it wasn’t.

He added that his legal advice is that he is not in breach of the law.

In addition, a disclaimer on states that the brands “cannot prosecute any person(s) affiliated with this website”, citing code 431.322.12 of the Internet Privacy Act.

Many more online stores display similar disclaimers, all citing code 431.322.12 of the Internet Privacy Act.

Another Australian website, which offers Tiffany and Gucci labelled jewellery cites the same code, stating: “Any person representing or formally employed by any of the brands offered cannot enter this website. … If you enter this site and do not agree to these terms you are in violation of code 431.322.12 of the Internet Privacy Act.”

Apart from the fact that a broad disclaimer like that would not be accepted by a court, Jeweller’s research could find no evidence of the existence of the, so-called, Internet Privacy Act. It appears to be a disclaimer used by many counterfeit websites in an attempt to deter legal action.

Jeweller emailed Martenstyn asking, “The Terms & Conditions section of your website refers to the "Internet Privacy Act". We can find no such Act, can you direct us to it?”

Martenstyn was also asked whether he agreed that the product his business sold was counterfeit given that it carries the logos of well-known brands.
At the time of publication Martenstyn had not replied.

Legal advice obtained by Jeweller indicates there is no law that prohibits legal action against a website. Any information obtained from these sites may be used by the affected companies in court proceedings."

Epilogue: July 6, 2010.

After reading the above article I was literally in an overwhelming state of disbelief and shock.
Is it really possible that someone based in Australia would display such
arrogant disrespect for Australian Commercial Law?

Or could this be just a late April fools day joke?

So I've decided to ring the above mentioned mobile phone number in order to
find out what is really going on here.

- Hi, my name is Nicholas Hacko. I am a watch dealer.
I've just visited your website and wonder if you also wholesale watches?
- Hi. Well I am just a watch dispatch person you need to talk to my boss.
- That's fine. However, it is important that before we enter into any business transaction, I want to make sure I am not breaking any laws...
- What do you mean?
- Well you guys do sell fake watches, right?
- No, not fakes. We sell replicas.
- Replicas, fakes, same thing...
- No, no. Our replicas are NOT fakes!
- Oh sorry, my misunderstanding. So you actually do sell genuine Rolex watches?
- No, no. You don't understand the difference with fake and replica...
- Huh?
- ... not genuine Rolex, just Rolex replica. But definitely not the FAKE Rolex.
- OK I see. You sell REPLICA Rolex!
- That's exactly right. Genuine replicas which look identical to real Rolexes.
- Very good. So would you be able to accept payments in replica money?
- What do you mean, I don't understand???
- You know, the replica money. Money which looks identical to real money but it is just replica. Like the stuff I can print on my printer...
- [laughter...] I don't know, I am just a dispatch worker. You really need
to talk to my boss [more laughter...]
- OK - let's say that I do come into agreement with your boss and he does accept my replica money for his replica watches - which sounds like a perfectly fair deal to me - would you accept that replica money as your wages?
- [upset voice] Are you serious??? I don't work for fake money!!
- No, no, no - it is not FAKE money, it is just REPLICA money, mate ...
- Sir, I am busy, if you have any more questions please send us an email.
Our email address is .
Thanks for calling. [phone hangs up]

So there you go. I never thought that my newsletter would provide
a link to REPLICA ROLEX website, but this bunch of clown dummies
actually deserve as much publicity as we can offer.

Is there a lawyer in the house? Can we get free legal opinion on this one please :-) ?
(What a heck - we'll even take REPLICA LEGAL opinion from FAKE lawyers)

Happy collecting,

Nick Hacko


Anonymous said...

Fantastic article and you have a great sense of humour.
Had me in GENUINE laughter!

crazyfingers said...

Loved the phone call conversation! :D

Unknown said...

Rolex will never win, as long as the consumer is aware that the purchase is not of the genuine article.

By the way, should there be laws against the sale of replicas, the commerce commission would be more keen to get to fabricators of art masterworks.

Anonymous said...

Hilarious! But great way to drive a point! :D