Counterfeit products in the cake decorating industry
Having a business can be a difficult yet rewarding venture. However, in recent years, an issue affecting businesses that sell cake decorating products is the creation of counterfeit products and the growth of online shops selling them. These can cause major problems not only for unsuspecting buyers, but also cake decorating businesses.
What are counterfeit products?
Counterfeit products are by definition fake or unauthorised replicas of a real product with the intention of passing as the original. They are produced to market off the known superior value of the original and create a cheaper version with what appears to have the ‘same’ qualities. Fake products can be seen as counterfeits, knockoffs or replicas.
Most companies have their trademark (company name and logo) on their products. Counterfeits try to counteract this by scratching them out or replacing them with their own name and logo. The difference between these may be slight but should be noted. Counterfeit products are illegal as they are replicas of an original registered or patented design.
Intellectual Property (IP) rights are a form of protection that give the owner the ability to take legal action to try and stop others from making, using, importing or selling copies of their creations. In October 2014, realising the damage knockoffs are doing to legitimate businesses, UK government introduced the Intellectual Property Act 2014. This has also now made it a criminal offence to copy, or sell a copy, of a ‘registered design’. The ‘registered’ is important as the act does not extend to unregistered designs. The legislation brings design protection into the same criminal category as counterfeits, piracy and trademark infringement.
IP consists of a number of ‘rights’ which you may find confusing, and nearly everyone gets wrong, so we’ve covered some below:
Covers the look or appearance of your product. There are two types of protection in law, registered and unregistered. These can be registered in the UK only or as a Community registration giving protection throughout Europe. It is important to understand the difference between ‘registered’ and ‘unregistered’.
Registered Design Rights
This gives you legally enforceable right to use your designs and prevent others from using them without your permission. It removes the burden of proving ownership or intentional copying which means the defendant (the copier) has to spend time and a lot of money to disprove your claim. It also makes it much easier to have copies removed from the likes of Amazon and eBay, who will only act if you can provide the design registration or trademark registration numbers.
The more ‘individual’ a design the better as you will need to provide images of the product front, side and rear. A registered design gives a monopoly right that lasts up to 25 years providing renewal fees are paid every 5.
Unregistered Design Rights
These are automatic rights but are of limited value and difficult to enforce. The responsibility is on the creator to prove ownership i.e. when you designed the product and that it is indeed a new design. It is also up to you to prove intentional copying which is very difficult. Unregistered designs have a much shorter monopoly period of 5 years, after which it is fair game.
As a minimum requirement, you should take lots of photographs of the design in production, with you in the picture, of you making the original. These can be kept on file or lodged with a solicitor or one of the many companies that will store a library of your work. A good way of getting third party evidence, that Karen Davies Sugarcraft use often, is to advertise your new design in trade magazines, on the market pages or in a private business advert. Unregistered design rights can still be enforced usually through the Intellectual Property Enterprise Court (IPEC) small claims track.
Patents protect new inventions, how things work, what they do and how they do it, what they are made of and how they are made. In general, patents only apply to ‘totally new’ inventions. For example, in the sugarcraft world, cutters and moulds have been around for thousands of years so it would be difficult to patent them. You may see a ‘new’ product with a ‘patent pending’ sticker on it, which is a way of having a monopoly on a that product for a short period (1 year), at a cost, after which in most cases the patent is not followed up.
So, what’s the problem with buying counterfeit products if they are cheaper?
The first, most important issue is safety. Most knockoffs are cheaper because they don’t use food safe silicone and may contain or absorb chemicals that would not be in the original product. Some tools such as cutters can be susceptible to rust and others can even include lead, which is poisonous to use especially when making cakes. Even if it may seem like you are saving money, you are not certain about the materials used and this can be dangerous.
Almost all counterfeit products are made with cheaper materials and therefore lower quality. Low quality products won’t last as long, whether from breaking easily or ceasing to work properly, so they have to be replaced anyway. You are better off buying one good quality item that will produce the quality results you are looking for.
Safety in Use
Creators invest a lot of time, money and expertise to ensure they are fit for purpose and can spend thousands of pounds perfecting safe for use products. Especially for products like isomalt, which is heated to a very high temperature, extra measures and research is undertaken to make sure products are fit for use. Counterfeit manufacturers won’t take any of this into account when cheaply replicating a product.
Impact on Businesses
Businesses such as Karen Davies Sugarcraft, Sweet Stamp, dragéekíss® and Katy Sue Designs are fighting this battle every day. These companies make beautiful products and designs to help cake decorators easily create impressive cakes. They invest their time and money to provide the highest quality products that will last a lifetime.
The impact on businesses like Karen Davies Sugarcraft can be detrimental as a lot of work is put into their registered designs. When buying a counterfeit mould that claims to be a ‘flower mould’ for example, you not only risk using a product that can be harmful but you are helping promote the production and sale of counterfeit goods. This inevitably affects sales of the original.
Karen Davies predicts that if the sale of counterfeits continues to grow substantially due to the rise in popularity in shopping on sites such as Alibaba and AliExpress, businesses such as her own will cease to design new products.
Many businesses in the cake decorating industry have first-hand experience and therefore invest their time, money and creativity to provide something they know will work. This involves all the costs associated with researching the safest and most useful materials they can use, buying tools to create their products, developing a design through to manufacturing. A lot of counterfeit manufacturers take advantage cutting the costs of research, development and manufacturing which is why they are cheaper for consumers than the reputable product.
Buying counterfeit products is detrimental to the creators and innovators. It affects businesses and in turn the industry as a whole.
How to avoid buying counterfeit products
It is crucial to understand the hard work put into innovating and developing products and tools from scratch, to support the businesses that created these products in the first place and to not buy cheaper, non-food safe, lower quality counterfeits.
You need to be careful when you purchase tools such as moulds or cutters online. Be sure to check the brand’s own website first so you know what you are looking for. The two vital things to look out for are signature colours and how the branding is presented on the product. Manufacturers usually engrave or stamp their name and/or logo on the mould. Copies have this scratched or faded out.
Ask the retailer where they purchased their stock from. If they say Alibaba, AliExpress, eBay or China, walk away.
In some instances, there are counterfeit products made to have the same packaging and colours as the original. A way to ensure you are buying non-counterfeit products is to buy from stockists on the brand’s website or retailers that are well-known to not sell counterfeit products.
We hope this article has been informative and helped you understand the effect of counterfeit products in our industry. Please support businesses that create original and amazing products for cake decorating.