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Lifestyle

Passing Off: The Tale of the Blogger and the Fake Tote

March 15, 2018

The other day, I mounted an okada (motorcycle, for my non-Nigerian readers if any) and was on my merry way to school. We passed through the local market just down the street from my house, and I was glancing around in my usual busybody fashion. Suddenly, I nearly fell over as my eyes graced a black beauty – it couldn’t be. It had to be.

I quickly told the bike man to stop and turn back, dropping me at what was now appearing to me as heaven. I walked closer to the beauty that had dared to make me turn my okada rider around. A rumor tote from Acne Studios – right before me! I was amazed; I had to have it (this is the downside of having cash TBH).

I asked the man the price and he told me N1200. I tried bargaining for N800 but he didn’t budge so I collected it for N1000 and re-mounted my bike, full of pride. The air smelt different all of a sudden, and I was shook. I had snatched a rarity – I mean, what are the odds of spotting an Acne Studio tote on the street side?

Oh, The Powers of the Gram

I hadn’t always lusted after the tote, but one day I saw one copped by blogger Ifeoma Amadi. It was burgundy, and beautiful. She also rocked it really well! I was drawn to the fact that it was Acne Studios – their prices don’t play around, people – and the white font used to write the artsy details “Acne Studios L.NYG. 23”, which I don’t even comprehend but anything for the aesthetics. So, I appreciated the bag from a distance. Seeing it on the street side was amazing! I started shouting and shaking my non-existent chest when I had a look around online, trying to see the RRP of the item I had just snatched. I was seeing hundreds of dollars, and felt proud.

I suddenly realized that my ‘ACNE’ was ‘ACNF’ and it didn’t seem like it had simply rubbed off. That was how it was made – a replica, a pass off. #acnestudios #passingoff #shortstory Click To Tweet

This ball of pride burst pretty quickly though when I tried taking a nice photo to show off on the gram. I knew I shouldn’t have gotten too excited. I suddenly realised that my ‘ACNE’ was ‘ACNF’ and it didn’t seem like it had simply rubbed off. That was how it was made – a replica, a pass off.

I felt ashamed – how would I flaunt on the gram? How would I stunt on my haters?

Moved by my riveting tale, I have decided to spin things around and throw a bit of legal education – hey, I have to show the world school fees is not being wasted on me, and that I do retain information as opposed to daydreaming about what my next blog post will be.


What is Passing Off?

If you’re a Nigerian, have you ever gone to the market and seen replicas of high end brands such as Nike and Adidas? You see all sorts of strange names like ‘Abibas’ and ‘Neke’, or even ‘Pomo’ as opposed to Puma. Going international, when perusing the virtual aisles of Aliexpress, you’ve probably ran into some sketchy but tempting items – dupes for popular bags, makeup and clothing items which you know damn well you should stay away from. Heck, I even spotted ‘Fenty’ the other day. These, my friends, are pass-offs. 

What is passing off? Passing off is a tort – a tort is basically something that causes damage to another, whether physically, economically or otherwise. Passing of is considering to be an economic tort. Why? Because when you snatch and replicate the designs of another in order to get yourself some cool cash, you’re taking away from their chances at also getting that cool cash. Thus, it’s a no no.

Want to form lawyer for a day? Check out this post featuring some hot deets on the tort of passing off - easy to read, easy to comprehend. #legalnaija #nigerianlawstudent #nigerianlaw #fakeitems Click To Tweet

Different Forms of Passing Off

There are 7 general forms through which passing off can be carried out, and they include –

+ Trading with a similar name to that of the plaintiff

+ Marketing a product as that of the plaintiff

+ Marketing goods with a name resembling that of the plaintiff’s goods (My ACNF bag falls into this one, I reckon)

you fake like this firkin

+ Marketing products with plaintiff’s trademark of its imitation (bent ticks for fake Nike products)

+ Imitating the appearance of the plaintiffs product (ACNF tote, I’m looking at you)

+ Selling inferior or expired goods as current stock, and

+ Imitating the advertisement of the plaintiff

All these work together to trick innocent, over-excited individuals like me into buying. I mean, I lost N1000 in the end, but it makes me sad to realise I didn’t look properly. When buying stuff, it’s important to shine your eyes!

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ELEMENTS OF PASSING OFF

Another interesting thing you should know is that there can be various types of passing off in one item. At the end of the day, if your product gets passed off you can always go to the court to get back what you have lost!
However, to convince the court your case is worth it, the elements of passing off to be established are:
+ There was an existing good will: You should have a good reputation in order for it to be damaged in the first place. You can’t defend what doesn’t exist, you know?
+ A misrepresentation was done by the defendant (the fake person)
+ This misrepresentation caused damage to the plaintiff

Fake Designer Vultures

There’s this lady in my class and she wears strictly designer. I’m pretty sure if I told her I thrift like it’s nobodies business she would faint. It’s not that she’s a snob, but she likes the fine things of life – not saying thrifting can’t yield that TBH. From university she’s always been a baby girl and now she has a large collection of hats, bags, shoes, sunglasses and clothing.

I am yet to see her full wardrobe, but from what I’ve seen, she’s not anybody’s mate. She even gifted me a pair of her designer sunglasses which I talked of in this post. This lady is so sharp with designer brands, she can spot a fake from 10 miles away. I die inside as she dissects bags in our class effortlessly, saying which is an obvious fake e.g. ‘min min’ (miu miu) or a replica of a designer bag. Anyway, she’s pretty good. 

All in all, I am quite sad about my mishap. However, here’s what we’re going to do. We are all going to pretend the tote is the real deal, okay?! Anyone who says otherwise is a straight up hater. It was real in my eyes when I bought it, even if i noticed the ACNF a day later – when the mumu button had jammed. I’ve even started practicing poses that will enable me to mask the shameful ‘F’.

The Small Clique Paranoia

Funny thing is, a majority of people wouldn’t know it is a fake (heck, even I don’t know why Acne Studios decided writing details of their studio was a hot design it’s quite aesthetically pleasing) but my fellow bloggers and Tumblr users would. That’s the shame in all of it! Well, I’m going to rock my fake tote effortlessly, because at the end of the day, the writing may be wrong, but the tote is strong. (Blows kisses)

This experience even got me thinking – would you rather buy the original even if it means saving for 5 years? Would you judge someone you saw wearing a fake of anything? I’d love to hear your opinions! I hope you didn’t shut down at the mini lesson on passing off. I think I should start a thing where I just cop funny renditions of designer bags – like the ‘You Fake Like This Birkin‘ line – genius. 

 

Similar: Brick & Mortar v. Online Stores

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  1. I had to laugh hard cos my own bag comes in an “f” and the beautiful thing is that google doesn’t have much information on which of the two is fake or original. Mine is solid leather, and very sturdy…everybody around me knows it’s my designer bag, lol. So dear, I don’t mind at all so long as it serves me well, I’ll keep strutting in it.

    1. Lmao really? Well it depends on the people you’re with. Some people would recognise its a fake instantly but your comment made me feel better. Plus, it’s not like I’ll throw the whole bag away just like that lol!

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