"Experts say online sales have fueled
an increase in fakes, confusing buyers and stymieing makers from Cartier to
independent artisans.
It didn’t take long for Mitchell
Binder’s first taste of international success to turn bitter.
About 30 years ago, the jewelry
designer went to a major international trade show in Frankfurt and introduced
the kinds of pieces he had been making and wearing in Southern California:
skulls and crosses, hefty silver rings, a look that screamed motorcycles and
rock ’n’ roll.
“It was edgy stuff, especially for a
very traditional market,” Mr. Binder, now 65, recalled in a recent video
interview. “I was very brazen about it.” He did so well at the show that he
registered for the next event.
But, “to my surprise, six months
later when I arrived at the show to set up my booth, I saw my designs all over
everyone else’s booths,” said Mr. Binder, adding that he had such a visceral
reaction, he felt like he had fallen off a building. The knockoffs were half
the price of his pieces, he said, and ranged in quality from good to
“godawful.”
“I was devastated. I took it very
personally,” he said. He finished the show and filled the orders he received,
but decided the business was not for him. “The last thing I wanted to do was
make jewelry for somebody else to copy,” he said. “I literally put my tools up
and quit making jewelry.”
But after a stint in Hollywood,
first in a blue-collar job and then doing some writing and producing, Mr.
Binder returned to his first love. He said he had come to realize that “I was
born to make jewelry, so I’d better figure out a way that I can live with this
problem and not make it so personal.”
In 2000, he introduced a company
called King Baby, which now has stores in Santa Monica, Calif., Nashville and
Las Vegas, as well as an authorized dealership in New Hope, Pa., and 13 stores
in China, owned by a business partner.
The problem of the knockoffs has never gone away, Mr. Binder
said, but he now hires others to handle legal issues and puts his energy into
the creative process instead of worrying about potential counterfeiters.
“They can’t get into my mind,” he
said. “I have the ability to create new designs.”
A
Host of Harms
Counterfeiting across the jewelry
industry comes in different forms and inflicts a host of harms — on individual
creators, certainly, but also on consumers, companies, even cultures or
countries.
It is an age-old
problem that has intensified in recent years given the ease of online commerce
and can involve violations of both trademark, which protects brand identity,
and copyright, which covers creative work.
When someone misuses a trademark — a name or logo or some
other feature that identifies a brand in a consumer’s mind — the harm can be
irreparable, according to Ben Allison, a lawyer in Santa Fe, N.M., who
specializes in commercial and intellectual property litigation.
“It’s a theft of someone’s identity,
but it strikes much closer to the heart of identity than somebody just using my
Social Security number to get money,” he explained. “It’s very personal. A
trademark is how the world knows me.”
In the United States, it is not necessary to register a
trademark with the U.S. Patent and Trademark Office or a copyright with the
U.S. Copyright Office because trademarks are acquired through first and
continuous use and works that are copyrightable by law are covered from the
moment a creation is finished. But having that registration provides “better
remedies and tools and better protection,” Mr. Allison said.
Infringing a copyright or trademark
is not the same as one creator simply taking inspiration from another. Cody
Sanderson, a Santa Fe-based jewelry designer (and a client of Mr. Allison’s),
said he had seen reproductions of his work for sale online that were not
labeled as such — and appeared to have been cast from a mold of his original
pieces.
“They use my piece exactly,” he
said. “They don’t deviate from it, they don’t change it up a little bit.”
For example, he said, a ring in
solid silver that he sells for $450 was copied in stainless steel and
advertised online for less than $20, including shipping. His initials and the
hallmarks identifying him as Navajo and the piece as sterling silver appeared
on the reproduction.
The
Spectrum of Fakes
Not all fakes are created equal.
Some are well-executed and expensive, others the tawdriest of knockoffs. In the
case of quality fakes, the victims include the creators of the genuine
articles, who might be losing sales, and the buyers who may think they are
getting good deals on the real thing.
When it comes to the cheapest fakes,
most buyers know what they are getting. “Nobody who’s buying a $10 Cartier Love
bracelet is buying that instead of the $10,000 one,” said Alaina van Horn of
U.S. Customs and Border Protection (C.B.P.).
Some may think a fake that was sold
openly — even promoted on social media as part of fast fashion’s “dupe culture”
— must be legal, said Ms. van Horn, who is chief of the Intellectual Property
Enforcement Branch of the C.B.P.’s Office of Trade.
But if the fake violated a
trademark, she said, its sale would not be legal. And even if the consumer was
not deceived, the sale would not be a victimless crime. “The brand good will is
eroded. The strength of the trademark itself is diluted,” Ms. van Horn said.
“If everybody’s walking around with a gold-looking bracelet with screw designs,
it’s going to erode the value of that genuine product.”
That screw-motif bracelet, the
Cartier Love, actually topped C.B.P. jewelry seizures in its 2021 fiscal year,
according to Ms. van Horn. Other top counterfeited jewelry items seized
included pieces with the Chanel double-C logo, copies of the Cartier Juste un
Clou bracelet and items from the Van Cleef & Arpels Alhambra collection, as
well as pieces purporting to be from luxury brands such as Bulgari and Tiffany
& Company.
A C.B.P. report said
watches and jewelry were the fourth-leading category of counterfeit products
seized in its 2021 fiscal year, totaling 12 percent of all seizures — but the
leading category in purported dollar value. Had the seized goods been genuine,
the report said, their total manufacturer’s suggested retail price would have
been almost $1.2 billion.
The C.B.P. said its enforcement efforts
were focused on federally registered trademarks and copyrights in its
Intellectual Property Rights e-Recordation System. The fake jewelry that has
been seized usually was ordered online and arrived in small parcels, not bulk
shipments, and China was the leading source, Ms. van Horn said.
More than 420,000 parcels from China
are processed every day, according to the C.B.P., and an interagency operation
has found that more than 13 percent of targeted shipments contained counterfeit
goods or contraband items.
There is no real way, though, to
calculate the full scale of imports of counterfeit jewelry, Ms. van Horn said.
“We don’t know how much we’re missing.”
Combating
the Problem
Companies have been acting on many fronts to combat fakes.
In June, Amazon and Cartier filed two joint lawsuits against a social media
influencer and eight businesses selling on Amazon, alleging that they had been
“advertising, promoting and facilitating the sale of counterfeit luxury goods
through Instagram and other websites, infringing on Cartier’s registered
trademarks and violating Amazon’s policies,” an Amazon news release announced.
The complaints, filed in the U.S. District Court for the
Western District of Washington, described a “sophisticated campaign” to sell
counterfeit Cartier products — including the Love bracelet — “while disguising
the products as nonbranded in an attempt to evade Amazon’s counterfeit
detection tools.”
Some of the world’s largest luxury groups have turned to
blockchain technology to certify the authenticity of their brands’ products and
discourage counterfeits. The Aura Blockchain Consortium [1]— whose members include LVMH Moët Hennessy
Louis Vuitton and Compagnie Financière Richemont — said on its website that the
technology had allowed brands “to put a tamper-proof digital stamp of
authenticity on any product or component.” And the De Beers Group, which introduced its blockchain platform
Tracr in 2018, announced earlier this year that it now was using the system to
provide “an immutable record of a diamond’s provenance.”
A start-up called Imprint Registry, which markets itself as
“a global art registry built to empower artists,” intends to use blockchain so
artists can take control of their own intellectual property and assure buyers
of authentic products, according to two of the company’s founders, Dogan Perese
and Ruth-Ann Thorn. The company introduced a beta version of its digital
registry in August at the Santa Fe Indian Market, an annual juried event.
Mr. Perese and Ms. Thorn said that, eventually, anybody who
purchased a valuable piece of jewelry or other work of art would demand a
secure electronic record, just as someone who bought a vehicle requires a
title.
“It’s just coming, because we live
in a world right now where people don’t always know what they’re getting,” Ms.
Thorn said.
An
Ancient Problem
To some extent, that has always been
the case.
“The first people to forge ancient
Greek art were the ancient Romans,” said Erin L. Thompson, associate professor
of art crime, fraud and forensics at the John Jay College of Criminal Justice
at the City University of New York. The ancient Phoenicians, she added, made
Egyptian-style jewelry, including rings with scarabs or cartouches of pharaohs.
Jewelry has long been a target of
looters at archaeological sites, and the demand for such artifacts also created
an opportunity for forgeries, Ms. Thompson said. Today there is what she called
a “robust” online market for supposedly ancient jewelry — including, she added
wryly, identical rings in a choice of sizes that happen to fit modern fingers.
Some buyers apparently are drawn by
the chance to get a bargain and do not stop to wonder whether something is
genuine, she said. Even if a consumer is not fooled by a forgery, though, she
said such practices have a negative impact.
“Who cares if somebody’s knocking
off an ancient Greek design?” she said. “It’s certainly not harming the ancient
Greek jewelry designer.
“But it does encourage the market
for looted antiquities,” she said, adding that it could lead to further
destruction of archaeological sites.
Counterfeits of any era also raise
concerns about unethical labor and environmental practices that might be
associated with producing cheap knockoffs, she noted.
Vulnerable
Communities
Native American jewelers are all too
familiar with the problem of counterfeits. Fake Navajo jewelry has been
produced since tourists first began to visit the U.S. Southwest in large
numbers more than a century ago and wanted cheap souvenirs, according to Liz
Wallace, a Santa Fe-based jeweler who is Diné (the name the Navajo call
themselves), as well as Nisenan and Washoe.
As wrong as it is to copy brands
like Chanel, Louis Vuitton or Cartier, she said, the people who produce
counterfeits of Native American jewelry often are hurting “some of the most
vulnerable communities in the country.”
Ms. Wallace, 47, said she had not
been a target of counterfeiters, but she had felt the indirect effects of a
market flooded with fakes. Years ago, before she realized the extent of the
problem, she would see inexpensive jewelry being sold as “Indian” pieces in
shops in downtown Santa Fe and felt bad that she could not make her jewelry for
those prices.
“I was getting really insecure,” she said in an interview.
“Of course, it was all made in the Philippines by people who were lucky to make
$8 a day.”
In fact, the U.S. Attorney’s Office
for the District of New Mexico has prosecuted several people in recent years
for producing Native American-style jewelry in the Philippines and marketing it
as authentic in the United States.
Ms. Wallace and several other Native
American artists testified as expert witnesses at a 2018 sentencing hearing in
one of those cases, which involved violations of the Indian Arts and Crafts
Act. (Under that 1990 law, it is illegal to market arts and crafts as Native
American if they are not.)
The two defendants in that case
pleaded guilty, one of them to felony charges that resulted in a sentence of
six months in prison, followed by a year of supervised release, according to
the U.S. Attorney’s Office. In 2020, two jewelry wholesalers in New Mexico
pleaded guilty in another case involving Filipino-made imports of jewelry
marketed as Native American. Their sentences included supervised release and
fines totaling $300,000.
But for people who make millions
with fakes, such fines are “just the cost of doing business,” said Mark Bahti,
who owns Bahti Indian Arts in Santa Fe and Tucson, Ariz. He said he believed
counterfeiting was more prevalent than it was even in the 1970s — what he
called “the disco era” of Indian jewelry — because of the opportunities to sell
fakes online and a lack of consistent enforcement of the laws to prohibit fakes.
“You can have the best-crafted law
out there,” he said, “but if you don’t have anybody actively, consistently
enforcing it, the people who are violating it can tell that in a heartbeat and
go on about their business.”
Mr. Bahti said he saw fakes “all the
time” among the pieces that people brought to him for appraisal. In one case,
someone had paid $12,500 for a bracelet said to have been made by the Hopi
jeweler Charles Loloma, who died in 1991. Mr. Bahti had to break the news that
it was a counterfeit worth about $800.
He encourages buyers to do research
and shop around. When they do buy, he said, they always should ask for receipts
that describe their purchases, the production methods and the makers — so if
there are problems later, they will have detailed proofs of purchase.
Consumers need to be more discerning,
Ms. Wallace said, adding that some people assume they are protected by law
without knowing the law can be hard to enforce. “I want people to really pay
attention to the wording of what they’re buying, because it’s so deceptive,”
she said. “They see ‘Native-inspired,’ and they just see the ‘Native’ part.”
She also wishes that the government
would take the problem more seriously and make more of an effort to protect
Indigenous peoples’ economies.
“I don’t know the art market in
Europe,” she said, “but I imagine if the French market was flooded with fake
Impressionist paintings that were made in China, the French government probably
would have stepped in by now.”"
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