Conceptualising and defining the “counterfeit” chameleon

Product counterfeiting is a serious, global problem that is increasingly attracting the attention of academics, businesses, brand protection practitioners, law enforcement, and transnational organisations. Previous research found that consumers’ confusion over the definition of the “counterfeit” term fuels the illicit trade. This paper examines definitions published across a range of sectors and shows that there is little consensus as to the meaning of the “counterfeit” term. It has become chameleon term, appearing in different guises depending on the author’s purpose and context. This inevitably leads to uncertainty, confusion and misunderstanding. The article offers a conceptual approach for including which intellectual property infringements sit under the counterfeit umbrella based on the observability principle: the relevant rights represent features that are always visible to an observer, that is, trademark, design, the linking trade dress, and geographical indication. The paper also offers a conceptual framework that distinguishes between essential properties and incidental characteristics and illustrates how the framework can be used to tailor narrative definitions for different audiences without obfuscating the essential meaning of “counterfeit”.