A danger to millions: why counterfeiting should be included among crimes against humanity – World Trademark Review

Last week, it was revealed that the Anti-counterfeit Network Africa (ACN) is preparing to petition the International Criminal Court (ICC) as a means to have counterfeiting included among crimes against humanity. The associations legal head Fred Muwema, who is also founding partner at Muwema & Co, noted that many fake goods end up endangering other peoples lives and, in doing so, should be regarded by the UN on its list of crimes against humanity. It is expected the petition will be sent to the ICC in Hague by November.

The petitioning of the ICC is arguably the most significant move of the Anti-counterfeit Network Africa since its formation in February 2016. Based in Uganda, the ACN is a not-for-profit that, according to its website, aims to bridge the intervention gaps between the multiple stakeholders that affect and are being affected by counterfeits and illicit trade. Since its launch, actions have included awareness events, the training of law enforcement, and the launch of a League of the Genuine the latter being an ambitious initiative that partners brands, law enforcement agencies and policymakers to expose counterfeit perpetrators, advocate for the dangers of counterfeits products and develop policies to safeguard genuine products.

However, it is unclear how likely it is that the ICC will agree with ACNs petition. As a reminder, crimes against humanity are defined as certain acts committed in times of war or peace that are part of a widespread or systematic attack directed against a civilian population. Those criminal acts include murder; massacres; genocide; ethnic cleansing; deportations; unethical human experimentation; extrajudicial punishments; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

That final criminal act listed by the UN could be crucial in the argument that counterfeiting should be listed among crimes against humanity. It is clear that many fake goods especially counterfeit pharmaceutical or food/drink products that contain dangerous ingredients can have harmful and sometimes deadly consequences. The World Health Organisation estimates that hundreds of thousands of people die every year from using fake medicines globally and during the ongoing covid-19 pandemic, fake vaccines have not only been causing countless injuries and even death to victims, but are also eroding public trust in authentic vaccines and encouraging vaccine hesitancy. Therefore, the indirect harm caused by fake vaccines is incalculable.

Indeed, the sheer danger of counterfeiting has been previously raised as a crime against humanity. In a 2014 study, fake anti-malaria medicine is labelled as a form of attack on global public health in which fake and substandard anti-malarials serve as de facto weapons of mass destruction. In a scathing analysis, it was revealed that fake antimalarial drugs contribute to nearly 450,000 preventable deaths every year, concluding that this crime against humanity is often underestimated or ignored.

Six years later, Ugandan president Yoweri Museveni publicly described the trafficking of counterfeit medicine on the African continent as a crime against humanity. Similarly to fake covid-19 vaccines, Museveni noted that the toll of all fake pharmaceuticals causes a huge loss of life estimated to be close to one million people annually but also leads to loss of confidence in medicine [and] the health systems that lead to citizens resorting to alternative medicines that are in most cases ineffective.

Of course, thats not to mention the various other ways that counterfeits can be deadly. For the past few years, the International Chamber of Commerce has been raising awareness of the growing prevalence and risks of fake auto parts (including airbags and engine components). Fashion and cosmetics can also have fatal consequences, including fake outdoor apparel (which will often not meet insulation and safety standards), sunglasses (which often dont protect users from UV, which can lead to temporary blindness and cancer), and make-up products (which can contain toxic ingredients including mercury, cyanide, arsenic, and paint-stripper). Theres also the risks with counterfeit toys for children, which are more likely to break and become a choking hazard (even worse when these fake items can contain unacceptably dangerous levels of cancer-causing plastics and heavy metals like lead).

Indeed, in comments toWTRthis week, the ACN'sMuwema confirmed the petition to the ICC will focus on counterfeiting crime that has significant risk of harm.The use and consumption of counterfeit products is resulting in the indiscriminate and widespread death and body injury to millions around the world, he says. This fits the description of a crime against humanity. In fact, the perception that crimes against humanity are committed only in the context of armed conflict is now out dated. These crimes are being committed cheaply through trademark infringement by economic terrorists without firing a single shot.

The petition is currently in the works, and Muwema confirms that it would welcome any assistance or support from relevant stakeholders.Weconsider counterfeitingan organised crime of thatpresents a concealed existential threat to humanity since it affects all aspects of human survival and endeavor, he states.Our petition to the ICC is intended to put counterfeits in sharp international focus and attention which it deserves but seldomgets.The petition will therefore welcome all the support from any and all stakeholders it can muster to achieve this noble objective (I amcoordinating the petition effort and am reachable by email).

WTR contacted both the International Trademark Association (INTA) and the International Anticounterfeiting Coalition (IACC) about their stance on this ambitious petition. Both confirmed they have not reviewed the issue and therefore dont have a position on it.

However, perhaps such a bold initiative is needed to really make a dent in counterfeiting trade. Despite the best efforts of rights holders across the globe, millions continue to be harmed by fake goods each and every year, with little sign of the tide turning. There is surely a better chance for positive change if dangerous counterfeiting is listed amongst the UNs crimes against humanity, ranking it rightly among the most despicable criminal acts. For that reason, major IP associations and other members of the trademark community should consider cooperating with the ACN in this ambitiouslegal effort.

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A danger to millions: why counterfeiting should be included among crimes against humanity - World Trademark Review