A few days ago, a U.S fashion retailer of African heritage selling fashion goods went on instagram to allegedly expose Nollywood actress Tonto Dikeh for purchasing fake designer goods from her and refusing to pay. The retailer was pretty aggressive as she ranted and provided screen shots of her alleged conversations as evidence that the actress did in fact enter into a contract with her to purchase these fake goods, she delivered the goods and now the actress has refused to pay her.
I honestly thought this dispute will go away. It hasn’t. Instead, it has become viral and continues to (sizzle). So, I thought I would just shut this drama down once and for all.
#FashionLaw 101 – Counterfeit Goods
The selling of counterfeit goods is a major problem across the globe. It poses a serious threat to the world’s economy and even more specifically, for our purposes, the U.S and Nigeria’s economies, the two countries involved in this case. It also robs intellectual property rights owners of legitimate income off their hard work and name. In Nigeria and the U.S, the federal and state governments of these respective countries recognize the huge threats posed by the sale of counterfeit goods, accordingly, they have civil and criminal laws in place to punish offenders that are caught. In simple English, the sale of counterfeit goods is illegal.
In the facts of Pearl Chuks (the U.S retailer) and Tonto Dikeh, Chuks does not deny she sells fake goods. She just claims that Dikeh ordered these fake goods and now refuses to pay. Dikeh denies ordering or knowing that the goods sent were fake. This is significant.
Here is what I want all of our Ladybrille fashion business owners to note about this case:
1. As a U.S. or Nigerian retailer of fashion goods, under no circumstances should you be selling illegal counterfeit goods to consumers. It is deceitful to do so especially when you in fact know the goods are fake and any contract you allegedly entered into for this illegal purpose is void as a matter of law. Therefore, even if it could be claimed that Tonto Dikeh knew the goods were fake and agreed to contractually purchase these goods, you the retailer cannot legitimately fight her to pay you on a contract that is illegal. What you will be told is, “too bad, so sad, go home.” At best you will be lucky if you are not arrested by law enforcement or sued by the trademark owners of the counterfeit goods you are selling. Please note that you can be criminally prosecuted as a business AND also as an individual selling fake goods.
2. At this point, what really should be happening, if the retailer insist on making a spectacle and fool of herself on social media is that Dikeh or other concerned parties need to alert the owners of the trademarks of the goods sold by this retailer. This is particularly so because this retailer seems to have a history of selling fake goods to consumers and profiting from it. The owners of the trademarks this retailer is selling can decide, especially since they are brands known for pursuing counterfeiters, whether to prosecute this retailer. Her instagram, websites and other social media pages should also be confiscated if it is used to market and sell these fake goods.
3. As a general business principle, you don’t out your customer on social media. Take them to court, hand them over to a debt collections agency. Deal with it any other legitimate way than creating a spectacle on social media. Why? Well, it is a turn off for potential customers who may want to do business with you, and it is simply not a sustainable business model to engage in a “shaming game” with your customers on social media. You shouldn’t fold over for abusive or manipulative customers. However, you shouldn’t be this immature, and worse do it when you are on the wrong side of the law.
4. Let’s be clear about the legal ramifications for selling fake goods.
- First, you can be arrested for selling fake goods, as a business or individual.
- Second, in the USA, The Trademark Counterfeiting Act of 1984 found at 18 U.S.C. 2320 governs what happens to you if you are caught selling fake goods. The ramifications include substantial monetary fines of up to $5 million and prison time of up to 20 years or life.
- Third, the rightful legal owner can also sue you in civil court to make you stop infringing on their trademarks.
- Fourth, the law focuses on your intent to traffic, or attempt to traffic goods or services AND knowingly use a counterfeit trademark in selling those goods or services.
- Finally, “traffic” is defined broadly and includes you selling a product with a counterfeit trademark, transferring, transporting or disposing goods in exchange for money or anything of value.
I hope the above sheds some light especially to the African fashion creative communities in the West and on the continent. Most importantly, I hope it puts an end to the embarrassing rant by this retailer.
Photo: Actress Tonto Dikeh
“Dear @tontolet,thank you for pushing me beyond my comfort zone.I trusted you as a celebrity and gave you a Givenchy luggage bag and handbag with you promising you will pay,you couldn’t afford the original so you asked for the replica.
“You ordered March 8th it was delivered March 20th and u had to pay that day but its been over one month and it’s been story after story,you ignore my messages and calls,you claim you assistant was going to pay me,I called Peter and he said the check you gave him of the 8th bounced on the 10th. Dear Tontoh I am a young girl 23yrs old trying to run a business.
“I am embarrassed and I am upset at myself that I trusted you as a public figure to pay me back,now I ask you my money you block me on Instagram?Who does that?when I read the tiannah story I thought it was a lie but I am still amazed at the fact that you have stooped so low and blocking me when you owe me.You will pay me by fire by force,you will not bully me.
“I have lost respect for you as a woman and as a human. I will make sure everyone knows who you really are so you don’t go dupe another young girl,thank God I didn’t give you the authentic bags if not where will I be?God sees all the devil we do and it will come back to you x10000.repay my money.lets not forget the moschoni dress shirt and you just called to threaten me?that weed you are smoking is really making you delusional.You are a sorry excuse of a celebrity when real celebrities and actresses call themselves please remove you name from the list ,” – Pearl Chuks
“I Am not really the type to keep messages but am glad I did in this particular case. ‘A young lady claims I owe her, as a celebrity,people think it is easy to scare us with the press but am sorry not this time . After stalking my life through social media and text messages,I succumbed to ordering some items from this young lady in a way to support her business, she was truthful that she sold only not the originals and convinced me by sending messages of her previous deal with Omotola the actress n few others n I told her i didn’t want but she convinced me and since it was my younger friend’s birthday, I took pity I asked for the items.”
“When I saw these things they were so fake I asked her to come back and take the items severally as it has been with my house manager,we have never tried to pay her and we never gave her no cheque.
”I know she might be pretty upset and I will forgive u but Am sorry I wouldn’t buy nothing from u and I promise no celebrity will buy from yoy… None of the message she posted online is on my phone….OK back to something better.” -Tonto Dikeh
Byline: Ms. Uduak Oduok is the Founder and Editor-in-Chief of Ladybrille® Magazine. She is also an Attorney and Partner at Ebitu Law Group, P.C, ebitulawgrp.com where her practice areas include Business Litigation and Fashion & Entertainment Law. She has counseled a range of clients from musicians, models, actors and actresses to designers on numerous areas of the law including contracts, business law, fashion and entertainment law, copyright, trademark i.e. intellectual property law. She can be reached at (firstname.lastname@example.org) to share/pitch your Africa Fashion Law™ related stories with her. All other inquiries, please visit the www.ladybrillemag.com/contact for appropriate contact email.
DISCLAIMER: Nothing herein forms an attorney-client relationship. The legal commentary provided is for informational purposes only and is not meant nor should be construed to be legal advice.