In the IP world, the issue of counterfeits is a huge one. It is perhaps not hyperbolic to view it as an epidemic for which, somewhat ironically, we do not have an effective vaccine. Across the world and in almost every B-2-C industry, businesses, representative bodies and governments are battling the problem with a variety of initiatives. These efforts are underpinned by the certain knowledge that many counterfeit products are outright dangerous.
How dangerous are counterfeits?
Trademark Lawyer Magazine recently looked at this issue from a UK perspective by virtue of a study from Incopro - an online brand protection company. They found that 9% of consumers buying counterfeit products over the internet had been injured by them.
Interestingly, they also found that 83% of those same consumers had been successfully deterred from purchasing that same brand in the future. It is mind boggling, in the first instance, to consider that it follows that 17% of consumers of a product that had hurt them would potentially purchase that product again!
Rather more fundamentally, the report is silent on the question of whether any of these 83% would reconsider the purchase of other counterfeit products online as a result of their recent experience?
This raises the question of the difference between knowingly and unknowingly purchasing counterfeit products. Of those who reported unknowingly purchasing a counterfeit product, 13% had bought medicines online which is particularly worrying.
Simon Baggs, CEO of Incopro is quoted as saying that "Counterfeits are available to buy from online marketplaces of every size. Often consumers are unaware of the dangers. Brands must tackle the commercial networks at the heart of this problem."
But are the commercial networks really the core issue?
I remain unconvinced that they are. Certainly, there is a significant percentage of those purchasing counterfeit products who are completely unaware that they are not purchasing the real thing. The various educational programmes run by many representative bodies including INTA can do a lot to help raise awareness of the volume of counterfeit products, the dangers of purchase and use and how to identify them.
But there is a clear volume of consumers who are not only aware that they are purchasing counterfeit products but in some cases, they are actively seeking them out. Ultimately, if tomorrow morning the demand for counterfeit products of all kinds were to disappear, the problem would be solved. In a world where 17% of consumers who have been injured by a counterfeit product seem to have no issue purchasing and using that same product again, we may need to look a little deeper into the problem for solutions.
So, why do people purchase counterfeit medicines?
While the more rational amongst us might struggle to understand the motivation to purchase counterfeit medications from shady sources, it is important that we make the effort - because it is clear that they do and in large numbers. An Irish news article from 2010 illustrates the scale beautifully. The article reports on a study by Pfizer which placed Ireland at number 6 on the list of countries in terms of the scale of counterfeit markets. They discovered that over 20% of Irish people confessed to skipping the prescription and seeking medications from illicit sources. 20% is a frankly staggering number behind which powerful motivations must lie.
The Partnership for Safe Medicines has some insight to share in quoting a Wall Street Journal article which investigated possible motivations. Consumers in 5 countries were surveyed and asked to identify the importance of 5 factors in that decision making process - ‘quality, cost, sentiment, ethics and ease of purchase’. The results stated that respondents thought that counterfeits equalled the real product which they couldn’t anyway afford, they didn’t much care for the companies that make legitimate products, the products were simple to get and they had little to no issue with the legal and ethical aspect of their choice.
This insight is supported by a very interesting conversation that Dirk Rodgers had with an Aunt over the Christmas holidays. When discussing his work battling counterfeit drugs, she informed him that she wished she could purchase some. Swiftly, he assured her that she really didn’t and she replied “I would really like to find where I can buy counterfeit drugs. I would much rather take counterfeit medicine than the stuff the big drug companies in the U.S. gouge us for, where they charge us many times the actual cost we’d pay for counterfeits.” He was at pains to point out that his Aunt is a very nice, elderly lady for whom the costs of necessary drugs was a struggle and he suspected that her view is rather more common than might be anticipated.
A quick read of the comments section of any article dealing with the problem of counterfeit medications will confirm his suspicion.
What then lies at the root of the problem?
The phrasing of Aunt Mary’s statement “the big drug companies in the U.S. gouge us for” hints at the crux of the issue. There has been a growing issue of diminishing respect for professions that once enjoyed a high level of trust - the legal and medical fields in particular.
This particular growth has been accompanied by the rise of ‘quasi’ professions where people entirely unqualified to do so, position themselves as legal and medical ‘experts’ who can provide ‘better’ services than those who are qualified and experienced in their field. Increasingly, members of the public are choosing to rely upon these people rather than actual professionals. Wherever there is a tinpot theory about an alternative cure for cancer or DIY legalities, there seems to be a ready queue of willing guinea pigs who in some cases are putting their very lives on the line.
In some ways, it’s not hard to understand how we got here and in others very challenging. Over the years, there have been difficulties with the development of some medications and while they are life saving, they carry risks too. The reality for pharmaceutical companies is that when you stand on the cutting edge, sometimes the knife is going to slip. It is a natural and inescapable consequence of pushing the envelope. It is unclear whether Joe Bloggs really understands the enormity of what they are trying to achieve and in many cases, succeeding in their endeavours.
Despite the lack of trust openly declared by the public in pharmaceutical companies, demand for faster and more effective treatments has not abated one iota. We depend upon them utterly to deliver hope and recovery whilst at the same time, deriding and dismissing them as profit machines who will happily damage people to feed their bottom line. It’s difficult to know where to even start trying to unpick those issues.
The Dunning-Kruger Effect:
Perhaps one place to begin is the Dunning-Kruger effect. It first came to light in a paper published in 1999 by David Dunning and Justin Kruger and effectively states that people who have no clue what they are doing are more confident in their abilities than people who actually do know. Additionally, they have little problem broadcasting their ‘expertise’.
So on one side of the divide, we have those who, whilst completely uneducated and unqualified, feel free to take to the airwaves to convince others of their brilliance. On the other, experienced professionals do their best to mitigate the flow of dangerous misinformation and properly treat or serve their clients in the face of growing mistrust. In the middle, the general populace is split into 3 main groups - those who insist upon proper professional assistance, advice and treatment, those who believe that is largely the right viewpoint but have their doubts or financial challenges in accessing such and lastly, those who fervently believe that an unemployed mechanic online has stumbled upon the secret formula for curing cancer with turmeric.
So, what’s the solution?
The shift towards more thoughtful and meaningful communications provides the answer. In every issue between people regardless of the setting or scope, thoughtful communication can be transformative. The trend towards greater transparency and an emphasis on helping people understand more about medicine and the practice of law in general, for example, could be helpful.
We clearly understand the need for trademark attorneys to take a greater role as ‘business partner’ to their companies and clients but perhaps we have underestimated how much the populace at large needs to view medical and legal professionals as ‘life partners’. There can be no denying the increasing alienation in circumstances where life, health and perhaps even freedom are dependent upon professionals who merit ‘trusted advisor’ status. Finding our way back to there is indeed a communications challenge but a worthy endeavour nonetheless.