'Fake' Or 'Repro'?
The use, context and differences within the words 'reproduction' and 'fake' are important to discern. Many lively discussions have come from using these words incorrectly, so here is some information to help.
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 laws. So let us have a look at what the law says when it comes to 'fakes' and 'reproductions', and then let us see what that means for the common collector.
Every business, manufacturer and product is (or can be) protected by certain rights, based on laws that offer protection in various ways. To ensure coverage, the business or manufacturer has to officially prove ownership and explain the specifics he requires covered. Commonly, this procedure takes place at an office which represents the area of legislation the business resides in. Depending on the subject, the result can be a common copyright, a registered trademark, a patent on certain mechanics, or a design patent, just to name a few.
Each form of registration has its own features and (depending on use) may also be applied for use on an international basis. No matter what subject, they all have one thing in common - they are all limited to certain periods of time. Trademarks for example may be registered for a few years only, but their registration period can be extended. International patents on the other hand may only be held for a maximum of twenty years, those can not be extended further.
All registration forms are tranferable, meaning that they can be put into the hands of a subsidiary, a legal successor, or even sold to a different company all together. Transfer or sale has no influence on the remaining duration of such a registration, and the registration period of any given registration form (e.g. a registered trademark) can then be extended by the subsequent owner.
As long as there is a company or other legal successor that signs to take responsibility (and pays the registration fees), everything is okay. But what happens when a company owning some form of registration closes down, leaving no legal successor that could take its place?
- When the company in question has been officially removed from the trade register (or equivalent media), all registrations formerly owned by that company are from then on covered and represented by the registration office in charge of proceedings.
- The office responsible knows the expiration date of the registration(s) in question and subtracts a certain work period as 'pre-warn' phase for expiration (commonly periods of 30 days to 18 months, depending on local laws and subject).
- As soon as this pre-warn period is reached, the office responsible makes the case public, either by newspaper or an announcement posted in the office in charge. This phase is a reminder for people to step up and claim ownership or present other legal reasons which would influence further proceedings.
- If nobody steps forward or intervenes, the registration finally expires and is removed from the respective register. The subject of former registration is now free to be used by anyone. Just like every new trademark, new name or patentable idea, it is up to the new user to register whatever he sees fit.
... and although this procedure works better than blocking a registration forever, it does have its drawbacks:
Let us take a look at the legal difference between a 'fake' and a 'reproduction'. A counterfeit ('fake') item is one that directly challenges or breeches existing legal ownership rights, such as an existing trademark, copyright or existing patent registration. For example, products imitating a specific Tiffany™ lamp or specific Rolex™ watch not manufactured by the original company are counterfeit ('fakes') because only the original manufacturer has the according rights which allow him to create such items.
When it comes to former manufacturers long out of business, people often forget (or ignore the fact) that the rights originally protecting an item, brand, trademark or whatever have long expired and are freed for further use (as explained above). Anybody manufacturing an item based on such old examples, even including expired company names and trademarks, is merely creating a reproduction of an item that was once made by somebody else. And the person in question is legally entitled to do so - simply because he is not breaking any law and the item itself (as well as the reused *former* trademark) is not protected anymore.
Collectors of items that were once made by renowned companies hate to see reproductions, especially when they are nowadays sold under circumstances that suggest or imply that the item in question is an original. However, generally claiming that reproductions actually are 'fake' or 'counterfeit' is 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 - according to the legal terms, meaning that they use the above definitions to verify what can be seen as counterfeit or not.
But what does that mean for the collector? Based on the active laws, there is no such thing like 'fake' Capodimonte, 'fake' Roseville, or 'fake' Royal Vienna, at least not in context with reproductions created after the expiration of rights once connected to those manufacturers. Hard-line collectors may find this unethical. However, all laws are based on a simple principle: everything not illegal is -per definition- legal. Period. There is no chance that any given online platform will remove listings containing reproductions - they are legal products, after all.
The above leads to another problem/question... can sellers be forced to state that their item is a reproduction? Per definition, no. There is no law that could force a seller to do so as their items are treated as standard products. It is actually up to the seller to state that the item in question is indeed a reproduction, either directly or by mentioning the production period or year (as in '2010 Roseville'). That is one of the reasons why 'listing aids', which allow classifications as 'Reproduction', have no legal relevance and/or consequences - one does not have to classify an item as repro even if one *knows* it is one.
It all boils down to the following: there is a legal definition which clearly states that informing oneself beforehand about items one wishes to purchase is actually the sole responsibility of the potential customer. One should be happy about every seller we find that clearly states he is selling a reproduction. For buyers and sellers alike, basic knowledge in an area of interest is vital. In short: 'caveat emptor', let the buyer beware.
© 2004-2021 C.S.Marshall, all rights reserved