Investigations by Jeweller
have established that a local website – SwissReplicaWatches.com.au
– sells exact copies of well-known brands including Tag Heuer, Breitling, Omega and Rolex.
The website is registered to a company called Brantley Pty Ltd and Australian Securities and Investments Commission records show the company as having two, Sri Lankan-born, directors; Kristiaan Martenstyn and Peduru Jayalath.
The registered address of Melbourne-based Brantley Pty Ltd is Unit 1508, 18 Waterview Walk, Docklands and the website lists a telephone number as +61 414 015 405 and makes the following claims; “We are Australia’s #1 Replica Watch Retailer, 1 Year FULL Replacement Warranty, 7 Day Risk-Free Money-Back Guarantee.”
Last week Jeweller contacted Martenstyn, who confirmed that the company had been operating for two years but claimed his actions did not breach any Australian or international laws. He went as far as describing his business as operating in a necessary industry because consumers demand the product.
“I wouldn’t call it counterfeiting,” Martenstyn said, adding that his products were “high-end replicas” produced in Geneva, Switzerland. Interestingly SwissReplicaWatches.com.au states, “We say NO to dodgy ‘fakes’ from Asia.”
According to intellectual property expert Lisa Egan, a senior associate at law firm Middletons, assessing whether product is counterfeit is quite straight-forward.
“If a business is using brand names without any authority [form the brand owner] then it’s likely to be a trademark infringement,” she said, adding that selling exact copies could also be a “design infringement”.
Egan confirmed that the term “replica” was incorrect – copies carrying a brand’s logo are classified as “counterfeit” goods.
Martenstyn justified his operation by claiming the website “helps” the watch brands.
“People who buy from us, they are not going to buy the original, so it doesn’t directly affect the trademark owners. In fact, it helps them,” he said.
Egan said the only reason the site could remain online was if none of the affected brands had taken action.
“It’s up to the owners of the brands to take action against it and have that content removed,” she said.
Martenstyn claimed he had never been contacted by any of the brands featured on his website.
“We’ve never actually had any issues at all. If we were to have any sort of issues with the trademark holders we are happy to work to meet a resolution,” he said.
The blatant nature of such operations raises questions about why the websites are allowed to remain online in Australia, given the potential damage caused to the brands’ reputation and integrity.
Interestingly, Rolex managing director Richard De Leyser said he was aware of the website.
He refused to comment on the matter any further, but said: “We take any infringement of our copyright very seriously.”
Martenstyn said he would continue operating the website for as long as his business was profitable.
“The reason we are in business is because consumers demand the products,” he said, adding: “The day that consumers no longer wish to purchase such goods, that’s when we wouldn’t supply them any longer.”
SwissReplicaWatches.com.au is run from Melbourne's Docklands
Rather than taking a low-key approach, further investigations reveal the company appears to be ramping up its operations, having recently advertised for two customer service representatives.
“We are looking for two new members to join our dedicated and friendly team that specialises in supplying high-end luxury goods such as jewellery, timepieces and paintings,” the online advertisement reads.
Egan said there is a number of steps companies can take to protect their intellectual property from online counterfeiters.
“The first port of call is to send a letter to the operator of the website,” she said, adding that Google can also be contacted to have a website excluded from search results.
“If that’s not dealt with appropriately then court proceedings could be issued.”
Egan said responsibility lies with the brands to protect their own copyright.
“I think brands need to be really vigilant in monitoring these websites. It’s really about the brands taking a proactive stance and making sure they’ve got their brand appropriately protected,” she said.
Martenstyn stressed that he had not been contacted by any of the brand owners about his website and added, in an interesting twist of logic, that he believes that his business activity is legal because no one had contacted him to say it wasn’t.
He added that his legal advice is that he is not in breach of the law.
In addition, a disclaimer on SwissReplicaWatches.com.au states that the brands “cannot prosecute any person(s) affiliated with this website”, citing code 431.322.12 of the Internet Privacy Act.
Many more online stores display similar disclaimers, all citing code 431.322.12 of the Internet Privacy Act.
Another Australian website, DesignerWishlist.com.au which offers Tiffany and Gucci labelled jewellery cites the same code, stating: “Any person representing or formally employed by any of the brands offered cannot enter this website. … If you enter this site and do not agree to these terms you are in violation of code 431.322.12 of the Internet Privacy Act.”
Apart from the fact that a broad disclaimer like that would not be accepted by a court, Jeweller’s research could find no evidence of the existence of the, so-called, Internet Privacy Act. It appears to be a disclaimer used by many counterfeit websites in an attempt to deter legal action.
Jeweller emailed Martenstyn asking, “The Terms & Conditions section of your website refers to the "Internet Privacy Act". We can find no such Act, can you direct us to it?”
Martenstyn was also asked whether he agreed that the product his business sold was counterfeit given that it carries the logos of well-known brands.
At the time of publication Martenstyn had not replied.
Legal advice obtained by Jeweller indicates there is no law that prohibits legal action against a website. Any information obtained from these sites may be used by the affected companies in court proceedings.
>To learn more about how to protect your intellectual property, read the September issue of Jeweller magazine.