Legal or illegal imports?The main difference between legal and illegal dealings with counterfeit goods goes between commercial and private purposes. However, it’s not always easy to see where the boundary lies between these two activities. Buying counterfeit goods is still an infringement of the rights of copyright holders and contributes to other criminal acts.
An overall assessment of each individual case will be undertaken before deciding whether goods have been purchased for private or commercial purposes.
The rules defining what is legal and illegal varies from country to country. If you purchase a counterfeit handbag or pair of sunglasses abroad, you risk being fined in the country where you are staying, or in the country to which you are travelling.
The right to purchase and import pirated goods for private use is legal in Norway. This means, for example, that you are within your rights to buy a fake pair of Ray-Bans, a wallet, or chair for your private use without infringing a patent or copyright holder's sole rights to the product design or brand name. This is because sole right restrictions on a brand name design or patent only apply to commercial usage.
But if you, as a private individual, deal with counterfeit products for financial gain, this is deemed to be a breach of the rights of copyright holders. Such infringements can lead to legal penalties, even in cases where illegal usage is at the minor end of the scale.
This is not a punishable offence:
Bringing a fake bag or handbag home with you from your holiday for your own private use.
This may well be a punishable offence:
Bringing several fake bags or handbags home with you and selling them to friends or on the internet for financial gain.
The law does not set a lower limit for how many items you can buy before the question of a commercial purpose becomes valid. This will depend on a concrete assessment, which amongst other things will assess whether there was a clear intention to make a profit.
Norwegian Customs Authority staff may impound goods if they suspect they are being imported for commercial purposes.
Even though you may not be acting illegally when purchasing a counterfeit item for private use, there are still many good reasons for avoiding fake goods.
In Norway, it is illegal for both private individuals and businesses to make use of, or help to make use of, products belonging to others that are protected by intellectual property rights (name, design, intellectual property, brand names, patents etc.) – if this is done for commercial purposes.
Running a business operation with products that infringe the sole rights of others is illegal in Norway. This applies regardless of whether the counterfeiting takes place in Norway, or whether you order the goods from abroad and import them into the country.
What is meant by the term "commercial purpose"?
- production of goods
- distribution of goods
- handling of goods
- the transportation of goods
- direct or indirect sale of goods
- marketing of goods
- use of goods in your own business
What's the dividing line between a commercial purpose and a private purpose?
The demarcation line that shows you are acting for a commercial purpose is not hard and fast. However, here are some pointers that can help you:
- Even though you don't own a business and are acting as «a private individual», you can still be deemed to be acting for commercial purposes.
- The greater the number of counterfeit goods you are handling, the greater the likelihood is that it will be deemed to be for commercial purposes.
- If you are in possession of the type of goods that would not normally be stored in large amounts for personal use, even possession of a moderate amount of such goods can lead to you being suspected of having a commercial intent.
- If you are utilising someone else's sole right for financial gain, the chances of your being deemed to have a commercial purpose are much greater.
- Both a direct and indirect financial gain for you can lead to your being deemed to have engaged in a commercial operation.The size of the financial gain involved does not need to be great.
- You can be deemed to have had a commercial purpose even though your involvement was short lived or small in scale.
At the end of the day, the legal system will assess the available evidence to establish whether or not you have acted for commercial purposes and have thereby committed a punishable offence by infringing the sole rights of others.