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Fake Or Repro ?

The terms "reproduction" and "fake" generate a lot of discussion, not only online, because they are often used incorrectly. Let us take a closer look at what they really mean. It may sound a little harsh, but personal feelings and perceptions are secondary in this case, as the definitions we are talking about are actually strictly separated and defined by law. So let us take a look at what the law says about fakes and reproductions, and then see what it means for the ordinary collector or reseller.

The Legal Point Of View

Every legal entity (e.g. person, company, manufacturer) or product can be protected by certain rights, based on laws that offer protection in various ways. In order to secure protection, the corresponding legal entity must officially prove ownership and explain the specifics they wish to have covered. This is usually done at an office representing the jurisdiction in which the company is based. Depending on the subject matter, the result may be a common copyright, a registered trade mark, a patent on specific mechanisms or a design patent, to name but a few.

Each registration type has its own characteristics and many of them can be used internationally (depending on the purpose). Whatever the subject matter, they all have one thing in common: they are limited in time. Trademarks, for example, can only be registered for a few years, but the registration period can be extended. International patents, on the other hand, can only be held for a maximum of twenty years and generally cannot be renewed.

All registration forms are transferable, i.e. they can be transferred to a subsidiary, a legal successor or even sold to another company altogether. The transfer or sale does not affect the remaining term of such a registration and the term of any given registration form (e.g. a registered trade mark) can then be extended by the subsequent owner.

As long as there is a legal entity signing to take responsibility and paying the registration fees, everything is fine. But what happens if a legal entity holding some form of registration ceases to exist and there is no legal successor to take its place?

When the legal entity in question has been officially deleted from the Commercial Register (or equivalent media), all registrations formerly held by that legal entity are from then on covered and represented by the Registry in charge of the proceedings.
The relevant office will know the expiry date of the registration(s) in question and will deduct a period of work as a pre-warning period for expiry (usually periods of 30 days to 18 months, depending on local law and subject matter).
Once this pre-warning period has been reached, the competent authority will publicise the case, either in a newspaper or by posting a notice in the competent authority's office. This stage is a reminder to people to come forward and claim ownership or provide other legal justification that would influence further proceedings.
If no one steps forward or intervenes, the registration will eventually expire and be removed from the respective registry. The subject matter of the previous registration is now free for anyone to use. As with any new trademark, name or patentable idea, it is up to the new user to register what they see fit.

And while this works better than indefinitely blocking expired registrations, it does have its drawbacks. Anyway, so far we have generally talked about three basic types of item, which are pretty self-explanatory:

original item: produced by the original trademark owner, full legal coverage
legal (re)production: produced by a second party under a license agreement (may or may not include pointers towards original trademark owner)
counterfeit/fake: illegal copy of an item and/or its marks that is/are still protected by brand/trademark laws
- For example, products that are not made by the original copyright holder and that imitate a particular Tiffany™ lamp or a particular Rolex™ watch are counterfeit (fake) because only the original legal entity has the rights to produce such items.

But when it comes to former legal entities that have long since ceased to exist, it is often forgotten (or ignored) that the rights that originally protected an item, brand, trademark or whatever have long since expired and are available for further use (as explained above). Any legal entity making an item based on such old examples, even including expired company names and trademarks, is (by legal definition) merely making a reproduction of an item that was once made by someone else. And the legal entity in question is legally entitled to do so. Simply because they are not breaking any laws and the item itself (as well as the reused former trademark) is no longer protected.

And as much as people may dislike it, that is the legal background. Collectors, in particular, have different views on ethics, good sales practice and the like, but all their arguments stand without any form of legal backing. Copying an unprotected item is not illegal; in fact, claiming that it is can get you into trouble, as the legal entity responsible for the copy can actually sue you for claiming otherwise.

Life, As We Know It

However, we must remember that even reproductions come in different flavours. And not all of them are fruity.

clean reproduction: a successor in rights copies items that are not protected anymore, using a different or new (and therefore obvious) marking. Addition(s) or omission(s) in regard of the original mark(s) are also common.
- Example: former US Roseville. Original goods include USA while the completely legal Roseville reproductions made in Asia do not include the former country of origin and are therefore easily identified. Claiming these to be "fake" only shows how badly educated the correpsonding person actually is.
grey reproduction: somebody that has nothing to do with the original legal entity and does not want to take any responsibity whatsoever copies/interpretates items that are not protected anymore, using markings and identifiers far too similar to former well-known trademarks. Goods sold with a clear intent to deceive; the reproducing entity tries to remain anonymous as to evade legal problems/consequences.
- Example: the typical asian import trash found on eBay and such. Especially dangerous as warning labels regarding posionous glazes/colors are removed by unscrupulous resellers, clearly endangering your health. As buyer you do not have a chance to take legal action against the producer, e.g. if long-term damages ocurr. In cases in which you are the reseller, you could be made legally responsible for damages to other parties without having the possibility to forward any claims.
dirty reproduction: copy or interpretation of an item that is no longer protected, while retaining all original markings and identifiers, with a clear intent to deceive. The producer of such goods tries to remain anonymous in order to avoid legal problems/consequences.

You could say that there is a clear dividing line between legal and illegal reproductions: someone who wanted to make a legal reproduction would always add enough clues to make it clear who the original creator/trademark owner was; an illegal reproduction, on the other hand, is entirely designed to deceive.

In the case of porcelain or china, of course, there is no box or the like, so all we have is the piece and the base mark(s) used. An item that looks like a Sevres/Vincennes item in body, decoration and glaze, and also has a mark that is very similar (if not identical) to a Sevres/Vincennes mark, is obviously trying to deceive.

Collectors of items once made by reputable companies hate to see reproductions, especially when they are now sold under circumstances that suggest or imply that the item in question is an original. However, the general claim that reproductions are actually fakes or forgeries is - as stated above - nonsense when it comes to the legal point of such a statement. Of course, many online (auction) sites clearly state and enforce a "no counterfeit" rule and use the above definitions to decide what is considered counterfeit.

Conclusion

So what does this mean for the collector? Based on the current laws, there is no such thing as a "fake Capodimonte", "fake Roseville" or "fake Royal Vienna", at least not in the context of reproductions made after the expiration of the rights once associated with these manufacturers. Hard-core collectors may find this unethical. However, all laws are based on a simple principle: everything that is not illegal is, by definition, legal. Period. There is no chance that any particular online platform will remove listings that contain certain forms of reproductions because they are indeed legal products. A few people may disagree, but to immediately claim that these items are fakes is definitely not going to be taken seriously.

And this leads to another question: can sellers be forced to state that their item is a reproduction? By definition, no. There is no law that could force a seller to do so, as their items are treated as standard products. In fact, it is up to the seller to state that the item in question is indeed a reproduction, either directly or by stating the period or year of manufacture (as in "2010 Roseville"). This is one of the reasons why certain listing aids that allow for classification as a reproduction have no legal relevance and/or consequences. You do not have to classify an item as a reproduction even if you know it is.

It all boils down to this: there is a legal definition which clearly states that it is the sole responsibility of the potential customer to find out about the items they are buying. Any seller we find who clearly states that they are selling a reproduction should be congratulated. For both buyers and sellers, a basic knowledge of an area of interest is essential. In short, caveat emptor, let the buyer beware.