ERA Counterfeiting Fact-Finding Program: Procedures & Policies

Counterfeiting is the deliberate attempt to deceive consumers by copying and marketing goods bearing well-known trademarks, generally together with packaging and product configuration, so that they look like they are made by the true manufacturer-rights holder where they are, in fact, inferior copies.

    1. ERA Member (hereinafter "reporting ERA member") contacts ERA with a counterfeiting claim.

       

    2. ERA confirms ERA membership status of reporting member and the alleged counterfeiter (hereinafter "accused ERA member").

       

    3. ERA sends counterfeiting claim and contact information for the reporting ERA member and the accused ERA member to the AAA.

       

    4. No claims of counterfeiting may be levied if such counterfeiting took place before the launch of the ERA Counterfeiting Fact-Finding Program (September 2006).

     

  1. AAA contacts the accused ERA member by telephone, email, or fax.
    1. If the accused ERA member either refuses to respond by the date specified by AAA or responds and refuses to participate, AAA will send a confirming letter to the accused ERA member and a copy of the letter to ERA. ERA shall terminate the accused ERA member's membership for one year. If the accused ERA member continues to engage in counterfeiting activity, termination of membership shall be extended for an additional three years.

       

    2. If the accused ERA member agrees to stop the counterfeiting activity, AAA will send a confirming letter to the accused ERA member and a copy of the letter to ERA. ERA shall terminate the accused ERA member's membership in ERA for one year. If the accused ERA member continues to engage in counterfeiting activity, termination of membership shall be extended for an additional three years.

       

    3. If the accused ERA member agrees to participate, AAA will forward via fax or email to the reporting ERA member and the accused ERA member:
      1. A submission form;

         

      2. A copy of the ERA Counterfeiting Fact-Finding Program Procedures;

         

      3. A list of neutral AAA fact-finders possessing the requisite knowledge of counterfeiting and familiarity with electronic retailing.

       

  2. During the course of the investigation, the accused ERA member's membership benefits shall remain intact.

     

  3. The reporting ERA member and the accused ERA member shall complete and return the submission form to AAA along with (1) a check for $3,000 made out to the American Arbitration Association and (2) a ranking of the fact-finders by order of preference by the date specified by AAA.

     

  4. If the reporting ERA member and the accused ERA member both fail to submit the submission form, the check and the ranking by the date specified, the AAA will notify ERA of the failure of both parties to perform in a timely manner and AAA will close the file.

     

  5. If the reporting ERA member submits by the date specified the required documentation and the check for $3,000, but the accused ERA member refuses to submit by the specified date the required documentation and the check for $3,000, AAA shall send a confirming letter to the accused ERA member and a copy of the letter to the reporting ERA member and to ERA. Upon receipt of the letter from AAA, ERA shall terminate the accused ERA member's membership in ERA for one year.

     

  6. The American Arbitration Association (AAA) shall take no action prior to receipt from the reporting ERA member of the $3,000 administrative fee. If the reporting ERA member withdraws the complaint, AAA shall retain one half of the $3,000 administrative fee, or $1,500. The remainder of the $3,000 administrative fee, or $1,500, shall be returned to the reporting ERA member.

     

  7. Upon receipt of the executed submission forms, the checks and the fact-finder designations, AAA shall assign a case number to the matter.

     

  8. AAA shall retain a non-refundable portion ($3,000) of the $6,000 remitted by the reporting and the accused ERA members to commence the Fact-Finding.

     

  9. The remaining $3,000 shall be held as a deposit and used by AAA to reimburse the Fact-Finder for expenses incurred and compensation due per the hourly rate designated on the individual Fact-Finder's resume and the Fact-Finder designation list. At the conclusion of the investigation the remainder, if any, of the initial $3,000 deposit shall be split and returned to the reporting and the accused ERA members.

     

  10. AAA shall review the fact-finder designation forms and contact via telephone the prospective fact-finders in order of preference to determine availability to serve and existence of any prior relationships with the reporting or the accused ERA members.

     

  11. Prior to appointment, the Fact-Finder shall complete and submit to AAA a conflicts disclosure form.

     

  12. The Fact-Finder appointed to the matter shall provide AAA a detailed accounting of expenses incurred and hours served during the investigation. It is expected that the compensation to be paid to the Fact-Finder shall not exceed $3,000. If, however, the volume of evidence and testimony results in compensation due the Fact-Finder to exceed the $3,000 initial deposit, AAA shall contact the reporting and the accused ERA members and the reporting and the accused ERA members shall immediately provide additional deposits of money to the AAA. The Fact-Finder may postpone continuance of the investigation and issuance of the report until after receipt of the additional deposits.

     

  13. Following appointment, the Fact-Finder shall immediately contact the reporting and the accused ERA members by telephone and discuss the nature of the allegations and any defenses. The Fact-Finder shall arrange for all supporting documentation to be sent by the reporting and the accused ERA members directly to the Fact-Finder and to each other.

     

  14. If the accused ERA member refuses to cooperate with the Fact-finder, AAA shall send a confirming letter to the accused ERA member and a copy of the letter to ERA. ERA shall terminate the accused ERA member's membership in ERA for one year. If the reporting ERA member refuses to cooperate, the investigation shall be terminated and the reporting ERA member shall reimburse the accused ERA member for the cost of the Fact-Finding. If the accused member refuses to cooperate with the Fact Finding Program, ERA will, in its weekly e-Newsletter state: "Name of Member did not participate in the Counterfeiting Fact Finding Program (as defined by ERA in its membership policies and procedures) and therefore, company's membership shall be terminated for one year."

     

  15. If the evidence (documentary or otherwise) submitted to the Fact-Finder is in a language other than English, the party submitting the evidence shall be responsible for obtaining at their expense a bona fide independent translation. A list of independent translators shall be available from ERA.

     

  16. If deemed necessary, the Fact-Finder may conduct telephonic interviews or joint telephonic conferences. The reporting and the accused ERA members shall make themselves and persons over whom they have influence and control available for these telephonic interviews or joint telephonic conferences.

     

  17. Neither the AAA nor the Fact-Finder shall make any public announcements concerning the investigation. Nor shall the Fact-Finder or AAA divulge confidential information disclosed by the reporting or the accused ERA members or the witnesses during the course of the investigation.

     

  18. Neither the Fact-Finder nor the AAA may be compelled to divulge confidential documents that were provided to the Fact-Finder or AAA during the investigation. Nor may the Fact-Finder or AAA be compelled to testify in regard to any aspect of the investigation in any current or subsequent adversary proceeding or judicial forum.

     

  19. The Fact-Finder shall attempt to conclude the investigation within 60 days of appointment unless the volume of evidence and testimony dictates otherwise.

     

  20. The Fact-Finder shall issue a one sentence finding: " (Name of accused ERA member) (did/did not) engage in counterfeiting as defined by ERA in its membership policies and procedures." The finding shall be binding in terms of ERA membership, but the finding shall not create any type of legal decision that would be binding in a court of law. Thus, the reporting or the accused ERA members who agree to participate in Fact-Finding may concurrently or subsequently seek other remedies such as legal action or arbitration. In addition, ERA may not impose any restrictions concerning announcements that may be made by the reporting ERA member.

     

  21. If the finding indicates that the accused ERA member did not engage in counterfeiting, the reporting ERA member shall reimburse the accused ERA member for the cost of the first investigation and any translation expenses. If the reporting ERA member refuses to reimburse the accused ERA member, the reporting ERA member's membership shall be terminated for one year.

     

  22. If the finding indicates that the accused ERA member did engage in counterfeiting, membership in ERA shall be terminated for one year. The definition of termination shall include during the one year period of termination: (a) No unused portion of the dues will be returned; (b) No ERA sponsorship, exhibition, or advertising in the ERA newsletter or magazine shall be permitted during the termination period; and (c) during the termination period, if the accused ERA member is found to be continuing counterfeiting behavior, the termination period shall be extended for three additional years. In addition, the accused ERA member shall reimburse the reporting ERA member for all deposits paid to the AAA and any translation expenses. Collection of the sums due shall be the sole responsibility of the reporting ERA member.

     

  23. The accused ERA member may within 10 business days of issuance of an adverse finding contact ERA to appeal the decision of the first Fact-Finder.

     

  24. Upon submission to ERA of their intent to appeal the finding of the first Fact-Finder, the ERA shall notify the AAA. The AAA shall contact the accused ERA member and the reporting ERA member. The accused ERA member shall complete and submit to the AAA a form seeking appeal of the first Fact-Finding decision and a check made out to the American Arbitration Association for $6,000. A second Fact-Finding investigation shall be commenced by AAA. The accused ERA member shall be responsible for the payment of all deposits due the AAA for the second investigation.

     

  25. During the second investigation, the accused ERA member shall not engage in the sale or distribution of the product that is the focus of the investigation. There, however, shall be no limitation on the sale or distribution by the accused ERA member of other products during the second investigation and membership benefits remain intact.

     

  26. The second Fact-Finder shall re-examine the evidence gathered during the first fact-finding process and may request additional evidence from the reporting ERA and the accused ERA members.

     

  27. The decision of the second Fact-Finder shall be conclusive.

     

  28. If the finding of the second Fact-Finder indicates that the accused ERA member did not engage in counterfeiting, the reporting ERA member shall reimburse the accused ERA member the cost of the second investigation and any translation expenses and the accused ERA member's membership shall remain intact. Collection of the sums due shall be the sole responsibility of the accused ERA member.

     

  29. Principals of an accused ERA member that is ejected from ERA may not rejoin ERA during the period of termination under another name.

     

  30. If a court of law determines that an ERA member is guilty of selling counterfeit products, that member's ERA membership shall be terminated immediately without a need to undergo the Fact-Finding process.

     

  31. The Counterfeiting Task Force approved a notation in the rules for Attendees and Exhibitors at ERA conferences, stipulates that all attendees and exhibitors agree to participate in the Counterfeiting Fact Finding Program, even if a prospective attendees or exhibitor is not an ERA member. In this way, should an accusation be levied against a nonmember attendee or exhibitor, there is redress and the Counterfeiting Fact Finding Program’s reach would cover nonmember attendees and exhibitors. Should such an accusation be made against a nonmember attendee or exhibitor, and the conclusion of the Fact Finder go against that attendee or exhibitor, ERA has the right to bar that attendee or exhibitor from all ERA conferences for one year.