When the mask slips

Market forces…
Intellectual property is all about the creation of a legal monopoly with lawful exploitation at its heart. There’s a problem; exploitation is equally central to counterfeiting. Often, as in the case of the Covid-19 outbreak, an opportunity presents itself amidst the panic and fear to illegally exploit a crisis and feed rising demand.

Worldwide reports suggest a recent surge in fake medical products. Surgical masks, hand sanitisers, testing kits, thermometers to name a few. With counterfeiting comes inferior quality. Not a social disaster if it’s a phony handbag but potentially lethal if it’s a medical instrument. A substandard facemask not only risks exposure to disease but can create a
false sense of security that can accelerate the spread of that disease to others.

Surgical masks might look like straightforward kit. They’re not. They are specialist pieces of medical equipment requiring a high degree of precision in their manufacture. To ensure this there are standards that must be met – even in China.

The science…
A basic surgical facemask has three layers:
1. The inner layer to absorb moisture from the wearer’s breath, cough or sneeze;
2. The middle filter layer to trap particles and infectious agents; and
3. The outer layer to repel liquids and prevent their inhalation.

It’s the middle layer that requires performance-testing and precision manufacturing to deliver filtration size micron-efficiency.

Counterfeiting on an industrial scale. Prima facie mainland China doesn’t lack regulatory requirements and standards of medical equipment manufacture but its ability to police them is questionable. This leads to fakes hitting the market. Hundreds of thousands of them. We already know of seizures of fake

masks in China, for example, 50,000 were reported in Yiwu the manufacturing hub in the eastern Zhejiang province. The production of fake masks in China is such that the counterfeit products look like the real product, are often sold off fake websites that look like the genuine manufacturer, using photo-shopped logos, emblems and registration numbers and certifications to look like the real product. Marketwatch recently reported the US medical equipment firms of
Prestige Ameritech, ProGear Health and 3M are recent victims of fake sites and bogus product sales. They are not alone.
It is reported the counterfeiters even forge “CE” certification stamps and documents that purport to attest to European standards in the same way they used to forge Ralph Lauren or Gucci labels on shirts and purses. The Independent recently reported: because no one’s buying tee-shirts anymore they start to manufacture masks, only they do so in unsterile
sweatshops. Evidently, counterfeiting is hugely profitable, the risk of detection is low, the risk of prosecution is even lower, and the penalties are weak.

Such is the scale of the Covid-19 equipment fraud the international anti-counterfeiting group
(ACG) urges:

Government to allocate resources to block the distribution of fakes especially on-line and warn consumers as to the risks;

Law enforcement to be alert to the threat and clamp down on criminal activity;

Internet eCommerce platforms to intensify policing and take down offending on-line sales; and

Brand owners to increase security of supply chains for genuine Covid-19 related products.

Governments get duped too
The Czech Republic, Slovakia, UK, Spain and France have all suffered from receiving sub- standard PPE in recent weeks from China. Some are counterfeit, some may simply have been exported without complying with Chinese manufacturing regulations. The blind spot being it’s easier and quicker to export to Europe than undergo Chinese regulation sign-off. Whatever the truth, substandard and counterfeit medical equipment is not merely commercially irritating brand rip-off IP infringement, it’s life-threatening. Protecting the IP of medical equipment ensures product quality and efficacy. Intellectual property rights could not be more important than in today’s Covid-19 environment.

Murray Fairclough
Development Underwriter
OPUS Underwriting Limited
+44 (0) 203 920 9985
underwriting@opusunderwriting.com