In general terms, the law requires that products meet the ordinary expectations of consumers. When a product has an unexpected defect or danger, that product cannot be said to meet these expectations.

Product liability law has developed in many countries in roughly similar ways, and all have a common basic rule – liability for a product defect could rest with any party in the products distribution chain. So, if a manufacturer produces and distributes a product that is defective, it is liable for the damages and injuries that product has caused. But what happens if the product that caused the damage was counterfeited or adulterated with an inferior brand?

The continuous growth of the global counterfeiting industry is a major concern, but in the case of lubricants it rests on the lubricant company itself, from the point of view of lost revenue, liability and damaged reputation.

Effective product branding brings benefits to the consumer by providing some assurance of a products quality and the manufacturers accountability. If a counterfeit product is passed off as one produced by a legitimate manufacturer (for instance, it bears an identical logo or packaging) and it causes damage, there is a high risk that a claim will be made against the innocent manufacturer instead of the counterfeiter. This leaves the manufacturer exposed to product liability litigation for damage it did not cause.

In the defense of such claims, a manufacturer could plead that it did not produce the counterfeit product, but it would need evidence to do so, particularly where the counterfeit is a close imitation. This may involve a manufacturer presenting expert testimony proving that its products materials and composition are different from the counterfeit. However, in defending a negligence claim, the effect of presenting such evidence would be to deny that the manufacturer owed the consumer a duty of care. This could, by consequence, damage the defendants reputation.

In addition, many manufacturers of products with proprietary formulas may be reluctant to divulge their formulations in open court in order to prove that the suspect product is indeed a counterfeit.

In other cases, a more complex analysis for both the strict liability and negligence claims would be required, where the overall product failed as a result of a fake component part. In any event, managing such claims is an unwelcome and costly distraction, even if the company eventually succeeds in avoiding liability.

For global brands, which can be victims of counterfeiting in multiple jurisdictions, there would be a significant cost in defending product liability claims and taking enforcement action against counterfeiters. That is why it is important to take preventative action.

Combating counterfeiters of ones product is, of course, worthwhile in all cases. However, it is based on a range of measures. These include a lubricants company registering its intellectual property rights, where applicable. It could also make the counterfeiting of its products harder by changing the design and production specifications.

Another step is to review distribution and supply chains for cross contamination with counterfeit goods. Once this has been done, a lubricant company should test purchase potentially counterfeit goods from suspected retailers. Finally, it should establish an enforcement strategy tailored to the product and the legal remedies available in the jurisdictions involved, which allows it to bring proceedings against counterfeiters.

All of these are good strategies, but in todays world, where counterfeiting is a known risk, they are not enough to protect against product liability litigation. Complete insulation from litigation is of prime importance. Only by physically distancing itself from a supply chain of the counterfeit defective product can a manufacturer be protected from product liability and/or tort litigation (a tort is a loss or damage resulting in a legal liability for the entity that committed the tortious act.)

Other than the actions listed above, a manufacturer needs a simple method to prove that the suspected counterfeit product is not its own. This method should irrevocably prove that the product in question is either genuine – produced and distributed by the manufacturer – or indisputably a counterfeit copy.

At present, manufacturers can defend against counterfeit product liability litigation by proving that the product was counterfeit. However, in the future, manufacturers may have a duty to take steps to prevent and deter counterfeiting.

These ever-increasing, well-known risks make it very possible that, in the future, a court will accept a claim that a manufacturer should be held liable for counterfeit versions of its products if that manufacturer took no measures to decrease the risk of counterfeiting.

With the prevalence of counterfeiting in todays markets and the numerous steps available for a manufacturer to make its products less attractive to counterfeiters – including the use of markers – a manufacturer that does not take adequate anti-counterfeiting measures could be at risk for tort liability.

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Uzi Breir is CEO of Dotz, a security marker technology company. Breir held leading positions at Fortune 500 companies and was CEO of a NASDAQ-traded company and other technology firms. He has degrees in computer science and industrial engineering and business.