Focusing on counterfeit Earnhardt collectibles
By Van Cox, for Turner Sports Interactive
August 17, 2001
7:10 PM EDT (2310 GMT)
A tragedy like the death of Dale Earnhardt often brings out the best in people.
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A sample of confiscated Dale Earnhardt collectibles.
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The Earnhardt family has been comforted by a steady flow of well wishes from concerned race fans. Unfortunately, that same sad scenario also brings out the worst in some folks: greed.
The Intimidator has long been a favorite focus for those who deal in counterfeit and unauthorized merchandise. The man who leads the sport in souvenir sales is also the man who offers knock-off artists their most attractive opportunity to turn a fast buck.
While most of us were still reeling at the news of Earnhardt's demise, producers of bogus souvenirs and collectibles were already starting to flood the market with contraband.
Counterfeiters tend to lean toward products that can be produced with a minimum investment and sold quickly.
T-shirts, vinyl decals and plaques are the three main categories that have hit the market since the Earnhardt tragedy. Posters, pictures and postcards have also surfaced.
One source estimated the amount of unauthorized product sold within the first three months of Earnhardt's death at a whopping $20 million.
"It was close to getting totally out of hand during the weeks immediately following Dale's death," said Chris Sullivan, licensing manager of Action Sports Management, a division of Action Performance Companies, which owns exclusive rights to produce Earnhardt die-cast, apparel and other items. "Working hand-in-hand with Dale Earnhardt Inc, the race tracks, state and local authorities and private investigators, we were able to jump in there and start policing the venues through which the unauthorized goods were being distributed."
CLEANING HOUSE
Initial efforts to curtail the sale of bogus Earnhardt product began trackside, where activity has been closely monitored at each and every event. Large scale sweeps at Rockingham, Las Vegas, Bristol, Darlington and other tracks resulted in numerous arrests and the confiscation of tens-of-thousands of dollars worth of unauthorized goods. Several court cases are still pending.
"With all of the efforts, of local and state authorities, the race tracks, Action Sports Image and even an occasional use of Rusty Wallace's helicopter, the unauthorized activity at the NASCAR venues is back to levels before the tragic accident," said Joe Hedrick, vice president of licensing for Dale Earnhardt Inc (DEI). "For the most part the 'weekend warriors'-the folks who show up at the track with a trunk full of T-shirts and what-have-you in order to make a quick profit have gone away. They realize that the rewards are not worth the consequences once they get caught.
"This is not to say all unauthorized or illegal products have subsided," Hedrick continued. "The ones that are still out there and making large profits are those in direct marketing. Our focus is now identifying and setting up enforcement for those organizations who are advertising in mail, TV, newsprint and on the internet. These are harder for to identify because the marketing efforts look and feel official and usually the medium to spread the advertising is legitimate, like your local newspaper or a local race broadcast."
WHAT IS COUNTERFEITING?
A driver's fame is what makes his souvenirs marketable. That's known as intellectual property and that's what is being stolen in cases of trademark infringement.
"Counterfeit" is a broad term that describes many types of bootleg merchandise. To understand the concept of what is counterfeit and what is unauthorized, the two terms need to be clearly defined. Technically, a counterfeit article is an exact duplicate of an original, fully-licensed product. An unauthorized item is an original creation that has been made without the necessary legal contracts being secured from the appropriate parties.
A third variation is the derivative collectible -- a hybrid created when one or more licensed products is used to create a totally separate unlicensed piece. Say you take a licensed trading card or photo of Earnhardt and use it to make a clock for resale. The resulting collectible is in fact unauthorized.
A driver's fame is what makes his souvenirs marketable. That's known as intellectual property and that's what is being stolen in cases of trademark infringement.
Laws vary from place-to-place, but most states have beefed-up their intellectual property statutes in recent years. Some jurisdictions have made trafficking in counterfeit merchandise a graduated felony. In some cases, charges and penalties are dependent on the total value of the contraband found in a suspect's possession. There is the probability of heavy fines and in some scenarios even jail time.
In addition, from a civil standpoint, counterfeiters may be sued for up to three times the retail value of the bootleg goods found in their possession.
"Our No. 1 focus is on the criminal aspect of any unauthorized use of our trademarks," said Hedrick. "It's important to note that there are instances where a product may be unauthorized -- that is, not licensed by us -- but not necessarily illegal. In those cases, it's up to a judge to determine what is legal and what is illegal."
Because trademark law does vary and can at times be a little vague, officials of DEI and Action maintain an open line of communication with state attorney general and trademark offices and county district attorneys in all localities visited by the NASCAR circuit.
"They've been very cooperative, as have all the law enforcement agencies we've dealt with," Hedrick noted. "The race tracks have been very helpful too. They want to clean this thing up as badly as we do."
NO AUTHORIZED MEMORIAL ITEMS YET
Hedrick emphasizes that it's important for fans to know that to date, the Earnhardt family has NOT authorized any products that memorialize Earnhardt's passing.
"Any item that is produced that has terms like 'in memory of' or any dates such as '1951-2001' is not authorized, licensed or endorsed by Dale Earnhardt Inc.," said Hedrick. "We also have not authorized or approved anything that has to do with the No. 3 with the wings and halo on it. I know people have seen a lot of T-shirts and stickers and a lot of other memorial product out there, but we haven't licensed any of it."
BUYER BEWARE
Hedrick is quick to note that race fans themselves have been instrumental in the fight to turn the tide against Earnhardt knock-offs.
"Through this tragedy," he elaborated, "the fans have learned to look for authorized products and support those because if they are willing to invest there hard earned dollars in a souvenir or collectible, they want the benefit to go to the racing teams, not some bootlegger.
"The fans of Dale Earnhardt are the most loyal in NASCAR and deserve to be recognized as such. If it wasn't for the fans electing to pass up the unauthorized merchandise, I'm sure our weekly enforcement efforts at the track would be like they were five months ago. It's supply and demand and the fans cut off the demand in and around the race venues."
Hedrick is exactly right. Quite frankly, an informed consumer is a counterfeiter's worst nightmare. Take away the market for unauthorized Earnhardt souvenirs and collectibles and the folks producing those goods won't be around long.
There are several things race fans can do to protect themselves while aiding in the fight against Earnhardt counterfeiting.
Buy only from reputable dealers -- whether it be your local racing collectibles shop, one of Action's trackside souvenir rigs, a department store, or an on line source like the NASCAR.com Store. If you're buying something out of the trunk of a car -- or, in some cases, even a flea market -- you might want to take a close look at the product before you pay for it.
Be sure to read all trademark and licensing verbiage that appears on the hang tags of apparel or on the packaging of collectibles.
"The quickest way for fans to identify an authentic licensed T-shirt is to look at that tag," advised Action's Sullivan. "If it's legitimate, it will say 'Chase' or 'Competitor's View.' That indicates the shirt is fully licensed by DEI and Richard Childress Racing. Make sure the RCR logo is on there as well as the DEI logo; look for the registration marks on the number and the signature and look for the legal tag lines."
In an effort to share information with fans and collectors, Action has set up a toll free Dale Earnhardt Counterfeit Merchandise Hotline.
Callers can use the hotline to provide tips on bogus goods or verify the authenticity of merchandise they are interested in buying. That number is: 1-877-337-3600.
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