We regularly find counterfeited or illegally imported products. The problem for most business owners is that it can be a new experience, particularly if you’re just getting started in Asia. What happens next? Who do you turn to?
For most, it’s a confusing experience.
Is there protection under the law?
Legal firms will eagerly get involved, but the reality is that the legal system is unlikely to resolve the issue. Many Asian countries do not have the judicial system to support laws that might, in principle, offer protection of the rights of those who hold brands, patents and other forms of intellectual property.
Consider Vietnam. Vietnam has a strong set of laws that protects intellectual property rights. However, practicing in the area of intellectual property requires a special qualification. The exam is complex, and we’ve heard that there were no new qualifications issued in 2013 and 2014. As a result, there are a handful of intellectual property lawyers and they are in high demand. Even more of an issue is the lack of judges trained to resolve intellectual property issues. There are numerous examples of cases that have taken in excess of five years to be resolved . . . and the resolution has rarely been satisfactory.
It is usually more effective to use the local enforcement agencies, particularly the economic police, given the huge challenges to the legal system in many emerging Asian economies. The economic police will act directly to seize products that contravene intellectual property rights. No waiting for a response to a “cease and desist” letter, a court injunction or resolution through the courts.
However, a company must provide a strong brief of evidence to the economic police, and there is an art to assembling this information and engaging with the various agencies. We take great pride in our effectiveness in this area. In the last two years in our pharmaceutical operations, SMCS Risk has delivered world-leading seizures in partnership with government agencies, including three seizures of more than a quarter of a million dosage units, and two seizures that were so big they had to be weighed.
No lawyers were required to achieve these outcomes.