Supreme Court rules authentic designer goods cannot be counterfeit

South Africa’s Supreme Court of Appeal ruled that authentic designer goods cannot be classified as counterfeit, even if imported without the local trade mark holder’s permission. The case involved Yossi Barel, who holds South African rights to the ENRICO COVERI brand, attempting to seize genuine Italian-made footwear imported by Popular Trading CC. The court found that counterfeiting requires intent to deceive, which was absent in this case.

The majority emphasised that trade mark infringement alone does not constitute counterfeiting, which is a criminal offence requiring deliberate deception. Testimony from the original brand’s family underscored the fashion industry’s emphasis on authenticity, further supporting the ruling. A minority of judges disagreed, arguing that unauthorised use of a registered trade mark should qualify as counterfeiting.

The decision highlights the tension between national trade mark rights and the global nature of fashion brands, and clarifies that authenticity—not just trade mark ownership—is key in determining whether goods are counterfeit under South African law.

The full article can be seen at https://www.adams.africa/dale-healy/supreme-court-rules-authentic-designer-goods-cant-be-called-counterfeit/.

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