Product counterfeiting is a problem that affects many sectors, but when it comes to toys, the implications are even more serious. These items are intended for very young children, and any defect or failure to meet quality standards can have devastating consequences.
Among the most counterfeited toys, we can find everything from dolls, surprise toys or building blocks to characters from video games or animated series and films.
The dangers of piracy for children's health and safety
Counterfeit toys often do not comply with the safety regulations established by the competent authorities. Article 116.1 of the Criminal Code states that Any person criminally responsible for a crime is also civilly responsible if the act results in damages or losses.In the case of counterfeit toys, the damage can be considerable. The materials used in these products may contain toxic substances, such as lead or phthalates, which are extremely harmful to children's health. In addition, small parts can easily break off, causing choking.
The most common tricks of counterfeiters
Among the most common techniques used by counterfeiters to introduce goods into the country is the falsification of labels. For almost two decades, there has been a serious problem with products bearing the CHINA EXPORT seal, which is almost identical to the CE (European Conformity) mark. Products with the China Export seal do not meet the quality standards required by the European Union, putting the health of consumers at risk.
CE marking (European Conformity) vs China Export seal
Another way counterfeiters operate is to ship counterfeit products in small packages, making it virtually impossible for Spanish customs to stop each and every package for examination.
How can manufacturers act to combat piracy?
Toy manufacturers have several tools at their disposal to protect themselves against counterfeiting. Not only do they have the option of registering the trademark of the toy in question, but they can also choose to register the toy as a three-dimensional trademark. In order to be able to register a toy as a three-dimensional trademark, the shape of the toy must have at least one characteristic that is not inherent to the generic function imposed by the nature of the product.
There are several rulings on this matter, such as the Judgment of the Court of Justice of the European Union of 18 September 2014, HAUCK, C-205/13, and the Judgment of the General Court of the European Union of 6 December 2023, BB SERVICES GMBH, T-297/22. Furthermore, toys can be protected by copyright, industrial design and even patents.
And the consumers?
A buyer could only take legal action if he or she had purchased a counterfeit product in the belief that he or she was buying an original product, as he or she could be considered a victim of fraud. In these cases, the consumer could report the seller for fraud under art. 248 CP.
Ultimately, the fight against toy counterfeiting is a battle that must involve all actors: from manufacturers and authorities to consumers. Raising awareness of the risks and adopting preventive protective measures can help mitigate this threat.
Alberto Gallo, Legal Area Associate, Antipiracy
