The epidemic of fake branded masks

By Manisha Singh and Simran Bhullar, LexOrbis
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According to precautionary and safety guidelines issued by national and international authorities, wearing a face cover is essential to curb the spread of the novel coronavirus. Such authorities have identified the wearing of face masks as one of the most effective precautions against the virus. Some jurisdictions have made the wearing of protective masks mandatory, while others have only issued public health advisories. Nonetheless, face masks have become crucial in the fight against the pandemic.

Manisha Singh,LexOrbis,Intellectual Property Enforcement face masks
Manisha Singh
Partner
LexOrbis

At the outbreak of covid-19, governments, medical staff, frontline and healthcare workers complained of the shortage of protective equipment while stressing the necessity of such equipment. Infringers saw this as an opportunity to exploit unsuspecting consumers by offering fake branded face masks. Masks with the logos of such famous brands as Tommy Hilfiger, 3M, Nike, Adidas, Puma, Amul and Disney flooded markets. Online searches yield thousands of results with listings of online sellers using various e-commerce platforms to sell apparently fake branded face masks.

Response from brands

This type of IP infringement has led to legal action. In the recent case of Tommy Hilfiger Europe BV v M/s Taqua Textiles & Ors, the international company, Tommy Hilfiger, filed a case in the high court for misusing the brand’s logo and trademark against two Tamil Nadu-based face mask manufacturers, M/s Taqua Textiles and M/s Shine Exim India, which were sole proprietorships owned and operated by the same person. The plaintiff had become aware of the infringement on seeing an advertisement on an e-commerce platform for face masks bearing its registered trademark and logo. On investigating further the plaintiff found that the defendants were infringing its trademark on other clothing and that the defendants were also infringing the trademarks of other famous brands. The court granted the applications for interim injunctions against the defendants to prevent them from infringing and passing off.

Simran Bhullar,LexOrbis,Intellectual Property Enforcement face masks
Simran Bhullar
Associate
LexOrbis

Fake branded masks have also been found in international markets causing general concern. 3M, a well-known American manufacturer of high grade N95 face masks, has brought legal action against various sellers and manufacturers for using its brand, logo and registered trademark, and for falsifying certificates and licences that are required to sell protective gear to healthcare workers. Other companies have adopted a more charitable approach. Green Gold Animation, whose famous Indian cartoon character Chhota Bheem has been printed on face masks by infringers, has chosen to avoid IP litigation if no big name is misusing its registered trademark and logo. The company has taken this attitude because masks are critical in the fight against the pandemic. However, this may be a counterproductive approach as the materials used in producing fake masks are of substandard quality.

Changing perceptions

Fake branded masks may cause more harm than good to consumers as the material used in manufacturing them offers little or no protection. These masks are usually made in unsterile conditions from substandard material. When cities in India experienced alarming levels of air pollution, branded face masks became fashionable as well as essential. In 2020, as it has become clear that face masks are here to stay, people have started to regard them as more than just personal protective equipment.

In a short period of time, face masks have become a coveted commodity in 2020. The fashion industry has responded by being innovative with face masks, producing the new accessory in bulk with eco-friendly materials. Designers launched lines of face masks. Some decided to manufacture solely for medical staff, while others donated to such staff by matching the quantity purchased by members of the public. However, the question of how far these masks are effective is a matter of dispute since textile workers are not used to complying with rigorous medical standards. Moreover, many industries lost business, with some coming to a halt because of the pandemic. To offset the loss of income, to stay afloat and to revive businesses, infringers began capitalizing on the shortage of face masks. Unfortunately, as our world is dealing with a public health crisis the peddling of fake branded masks is at an all-time high.

It is fortunate that authorities and businesses are starting to take notice of the growing pandemic of fake face masks. Government agencies continue to release health advisories relating to the effectiveness of wearing original, well-manufactured face masks. Businesses are also playing their part by taking a proactive approach to discouraging infringers and indirectly avoiding detriment to public health.

Manisha Singh is a partner and Simran Bhullar is an associate at LexOrbis.

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