Go Undercover with a Test Purchase Program

Cindy Yard | February 11, 2020

As a brand owner, you’re doing everything you can to protect your IP. So why do you still have a counterfeit problem? Maybe its time to consider implementing a test purchase program.

You registered and recorded your trademarks with Customs to help stop counterfeits at the border. You’re monitoring online platforms and submitting takedown requests when infringements are identified. But still, new infringements keep popping up… What do you do now?

If you find yourself in this position, a test purchase (TP) program might be the best solution for additional brand protection. A TP program involves making undercover purchases of suspect items for sale. It will allow for the collection of market samples and additional evidence against the dealers who are selling counterfeits of your brand. This helps to identify the scope of the problem and also lays the foundation for further legal action if necessary. Following are just a few scenarios that benefit from a TP program.

Do you plan to send a Cease & Desist notice to a seller offering knock-offs of your product?

You may first want to execute an undercover buy from their site to confirm the receipt of counterfeit merchandise. Then, the C&D can be an effective tool to collect the counterfeit goods in the seller’s possession and gather intel about their upstream source. It also places the seller on notice in the event you choose to pursue a legal case against the seller.

Have you already served notice to a seller, but they continue to infringe on your IP rights?

Follow-up test purchases will help to lay the groundwork for further legal action, including civil litigation or a criminal referral. Subsequently receiving counterfeit product after serving a C&D will demonstrate that the seller is willfully distributing counterfeit merchandise.

Do you suspect that many individual sellers are actually part of a larger network?

You can gather important information (e.g., names, email addresses, phone numbers, shipping addresses, etc.) by making purchases from each of the sellers. Linking seller attributes from multiple purchases will illustrate the connections between sellers and help tie them together.

Are you coordinating with an online marketplace to check for the presence of counterfeits on their platform?

Performing a test purchase sweep (a high volume of buys in a short timeframe) is an efficient and effective way to confirm that counterfeits are present and gain the cooperation of the marketplace.

Don’t know where to begin?  Consider these options.

  1. Start small. If you suspect you have a problem on a specific platform, establish some fairly narrow criteria and order targeted test purchases to see what you get. If your suspicions are confirmed, use the information collected during the purchase to see if those same sellers are on other marketplaces. Then, consider expanding your scope.
  2. Expand. Leverage results from an automated search service combined with human intelligence to identify repeat offenders. Focus on the big fish.
  3. Be vigilant. Establish an ongoing program to consistently monitor the marketplace for suspicious offerings. Order regular test purchases to stay ahead of the bad guys. Know your marketplace!

Whether you intend to use the samples collected from test purchases for intel or for litigation, it’s always a good idea to use licensed private investigators to execute the buys. A high-quality investigative team maintains a diverse portfolio of undercover resources, is well-versed in covert communication, and follows strict chain-of-custody procedures. Following best practices will ensure that you receive comprehensive reporting and secure evidence to support your case.

If you are interested in starting a TP program, contact us to see how IPS’ highly qualified investigators can support your needs. Let our expertise and experience work for you!

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Cindy Yard

Cindy has been a member of IP Services Brand Protection team since 2011, first as a forensic analyst and currently as the Director of Brand Protection. Armed with a degree in Business Administration from Indiana University of Pennsylvania and a work history in retail and the promotional products industry, she never dreamed she’d be fighting the good fight against counterfeiters and piracy for a living.