Disincentivising counterfeit trading under the current legislative framework in Australia: do consumers play a role?

  • Yuxing He

Student thesis: Master's Thesis


Counterfeiting and counterfeit trading continue to grow rapidly, becoming a serious global issue. Reports reveal that the value generated from international counterfeit trade tripled from 2013 to 2018. The International Chamber of Commerce also estimates that USD 4.2 trillion is likely to be drained from total international trade by 2022.

The Organisation for Economic Co-operation and Development (OECD) has pointed out that one of the major difficulties faced by governments in deterring counterfeiting and counterfeit trading is the diversity in trading and transportation methods of counterfeits. More and more counterfeits are being traded online and shipped as individual or domestic parcels, which imposes substantial challenges for governments to measure and monitor counterfeit trading. In Australia, similar issues can be detected. Since 2016, the Australian Border Force has not published data about counterfeits seized by Customs, and there are no systematic records available in Australia regarding detected counterfeits or counterfeit trade. The lack of sufficient measurement and the difficulties in addressing counterfeit trading indicate a pressing need for further research into whether Australia’s current anti-counterfeiting framework provides adequate protection for consumers and traders, and whether it sufficiently disincentivises future counterfeits being made in or being imported into Australia and counterfeit trading occurring in Australia. Moreover, growing technologies and consumer power create an urgent need for more efficient ways to regulate counterfeiting and counterfeit trading in Australia, both from the demand and the supply sides, as opposed to traditional ‘supply side only’ regulations.

There is no explicit anti-counterfeiting law in Australia. Counterfeiting and counterfeit trading are primarily regulated by s 120 of the Trade Marks Act 1995 (Cth), the common law tort of passing-off action, and ss 18 and 29 of the Australian Consumer Law 2010 (Cth). However, insufficient consideration of non-deceptive counterfeits and deliberate counterfeit consumers has been given in these regulations. This results in certain counterfeits falling outside the reach of current anti-counterfeiting policies in Australia. It is also argued that the current anti-counterfeiting regulatory framework is not effectively disincentivising future counterfeiting.

It further proposes, after examining relevant anti-counterfeiting provisions in Italy and France, that Australia should consider imposing consumer liability on deliberate counterfeit consumers for more efficient measurement in deterring counterfeits in the future.
Date of Award8 Feb 2022
Original languageEnglish
SupervisorFrancina Cantatore (Supervisor) & Brenda Marshall (Supervisor)

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