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Counterfeiting and piracy in international trade: the good, the bad and the … oxymoron of ‘real fakes’

Rostam J Neuwirth

Keywords: creative economy; creative industries; intellectual property law; trademarks; piracy and counterfeiting; fashion industry; essentially oxymoronic concepts; paradoxical thinking

The rise of the importance of intellectual property rights (IPRs) at the global level as well as the proliferation of regional trade agreements (RTAs) call for a more careful and more balanced consideration of the debate about the future of the global protection and enforcement of IPRs. Exemplified by the problem of international trade in pirated and counterfeit products, especially in the context of the fashion industry, the present article sets out to identify the major shortcomings of the present regulatory debate. These shortcoming are those of a limited number of stakeholders clearly divided into the ‘good’ and the ‘bad’, a stronger interest in negative rather than positive externalities, and, ultimately, a predominantly dualistic conception of intellectual property law in particular and law in general. This dualistic conception will be critically contrasted by a look at several business reports about the creative fashion industry and the introduction of the oxymoronic notion of ‘real fakes’. As an oxymoronic concept, the real fake is used to identify a wider linguistic trend in contemporary scientific debates, which may serve as a reminder to complement dualistic reasoning by more paradoxical forms of thinking as well as related regulatory concepts.

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