Intellectual Property Protections and the Art Market in Japan

February 21, 2025

By Anjali Krishna

As visitors flock to Japan in the throng of post-pandemic travelers, they travel not only in search of a cultural education: Tourists seek the opportunity to purchase authentic designer goods under the protection of strict anti-counterfeiting laws. While the ubiquity of designer “dupes” grows with the popularity of sites like DHGate, Japan positions itself as a safe haven for authentic luxury buyers with its robust protection of intellectual property rights.^[1] Japanese Customs defines counterfeit goods as products infringing on trademark, design, and patent rights.^[2] In most cases, these goods are fake designer products.^[3] While many anti-counterfeiting laws are directed toward fake luxury goods entering the country, they also are applicable to pharmaceuticals, patented technology, and fine art.

The Japanese government takes an active role in combating the counterfeit goods market, stringently enforcing and updating a series of laws protecting intellectual property rights. Indeed, Japanese Customs physically inspects every package entering Japan while other nations do so only sporadically.^[4] Considering the re-emerging fine art market in Japan supported by heavy-handed governmental initiatives, the strength of anti-counterfeiting laws as it relates to fine art forgeries becomes increasingly interesting.

The Japanese Art Market

Today, the art market in Japan constitutes only 1 percent of the global art trade despite Japan being the world’s fourth largest economy.^[5] In the late 20th century, however, Japan was one of the top buyers of both Western and Asian art before the country’s severe economic downturn in the 1990s.^[6]

In an attempt to reposition itself within the art market, Japan established designated customs areas in which sellers may import art from overseas without paying an import tax.^[7] Previously, sellers were unlikely to stage exhibitions in Tokyo—the city Japan hopes to elevate in the art market—due to the import taxes.^[8] After the passage of this law, duties would only be enforced if the piece was sold to a Japanese buyer.^[9]

While the Japanese art market is still relatively small—top Japanese artists more often sell in Hong Kong than domestically, and buyers are reluctant to invest in new talent—its growth is not going unnoticed by galleries in Tokyo locations, who welcome the presence of young Japanese entrepreneur-collectors at international art shows.^[10] Because of this growing market, the country’s rigorous safeguards for authenticity and transparency may be an asset as it hopes to extend into the arts sphere.

In fine art cases where intellectual property rights have been challenged, Japanese authorities have taken swift action. In 2021, the Contemporary Graphic Art Dealers of Japan investigated the surprising increase in prints by Japanese artist Ikuo Hirayama on the national art market, concluding that a series of forged prints were sold at the department store Sogo & Seibu Co.^[11] An art dealer in Kansai confessed to commissioning the prints from a workshop when they were struggling with debt.^[12] While police pursued the case as copyright infringement, the department store itself tracked down and refunded 59 of the 71 pieces within the year.^[13] Investigations by organizations like the Contemporary Graphic Art Dealers are conducted regularly in Japan, protecting intellectual property in a timely manner.^[14] There also exists a public commitment to safeguarding intellectual property, as the printing incident spurred editorials demanding that the Japanese government reformulate its laws on document certification.^[15]

A more recent case in 2024 involved the notorious German art forger Wolfgang Beltrucchi, who confessed to painting two fake works.^[16] At the Cycle Race Track, verified by Christie’s, was sold by an Osaka gallery to the Tokushima Modern Art Museum as a work by French artist Jean Metzinger.^[17] The Kochi Museum of Art purchased Girl with Swan from a Nagoya art dealer, thought to be a work of German expressionist Heinrich Campendok.^[18] Though Beltrucchi has not yet been charged, his case is expected to be dealt with in a similarly effective fashion.

The Process of Inspection

Customs agents physically inspect every package entering Japan, regardless of whether its stated final destination is in the country. If customs suspects an attempt to import counterfeit products into Japan, the goods will be stopped at their port of entry, and a Verification Process will be initiated.^[19] Customs will contact both the product importer and rights holder, inviting both parties to submit opinions and evidence as to the goods’ legitimacy within ten days.^[20] Oftentimes, in the case of importing fine art, the Verification Process will also include an expert in the field. After evaluating this evidence, customs will either allow the products’ delivery or confiscate the items. Ninety-seven point one percent of goods suspended for violation of intellectual property laws were mailed directly to their recipients rather than being shipped in general cargo.^[21]

This strictness of Japanese customs is an essential part of the nation’s effective system. In 99 percent of cases, the importer does not reply to this request, and the goods are confiscated without penalty to both buyer and overseas seller.^[22]

Companies in Japan are offered the opportunity to more actively counteract the sale of counterfeit goods that allegedly infringe on their intellectual property rights. One such initiative is the Application for Import Suspension, which allows an applicant to temporarily suspend their product’s importation into Japan.^[23] Customs agents will then meet with the applicant’s representative to learn how to distinguish counterfeits from authentic products.^[24] Additionally, the courts may order internet service providers to reveal a counterfeit seller’s information, helping companies to counteract e-commerce sales.^[25] The success of Japanese intellectual property protections lies within these rigorous procedures and strict methods of enforcement.

Intellectual Property Rights Legislation

Updates to three key pieces of Japanese legislation support the crackdown from customs. Recognizing that a large portion of counterfeit goods in the national market were produced outside of Japan, the Trademark Act and Design Act were both revised in 2021 to strengthen the prohibitions on exporting counterfeit goods to Japan.^[26] Because the personal use of counterfeit goods was not considered trademark infringement, a significant number of overseas businesses directly mailed these products to buyers and cited personal use rather than sale.^[27] Unless these products arrived in large numbers—which was unlikely as they were purchased by a single e-commerce consumer—it was difficult for Japanese customs to disprove the assertion of personal usage.^[28] Thus, many counterfeit products were able to slip into Japan. To remedy this issue, the Trademark and Design Act was changed to include the foreign exporter. Customs is now able to recognize the foreign seller’s act as infringement of the trademark laws and confiscate the counterfeit products.^[29]

The Customs Act was also updated in 2022.^[30] Japanese Customs feared that overseas businesses would circumvent the Trademark Act update by naming an individual rather than a business as the sender. The amendment to the Customs Act gave officials stronger authority to question the relationship between sender and receiver or search the package to determine its nature as a purchase or gift.^[31] To deny the confiscation of goods, individuals would need to submit documentation of the relationship between themselves and the sender.

Legal consequences for an act of trademark infringement are harsh: up to 10 years in prison, a fine up to 10 million yen, or a combination of the two.^[32] However, if counterfeit goods are confiscated by customs, the act is considered only attempted infringement, which has no penalty.^[33] If a buyer is unaware that the product they have purchased is counterfeit, the goods may still be identified and confiscated at Customs.^[34]

Japan’s Unfair Competition Prevention Act similarly protects intellectual property rights, allowing wronged parties to seek compensation when counterfeiters inaccurately claim to be another business or person.^[35] As something of a catch-all, the Unfair Competition Prevention Act ensures that no counterfeit object slips through the cracks when it does not fall under the specifications of another import regulation. Domestically, the Unfair Competition Act makes it difficult to produce counterfeit goods within the country as the regulations involved with establishing a Japanese business and manufacturing company are similarly strict. The Export and Import Transaction Law also outlines that any cargo which may challenge rights in patent, trademark, design, or copyright may be prohibited, and the exporter may be fined up to one million yen or up to two years in jail.^[36]

Japan in Context

In 2007, Japan, Korea, and China held the seminal Tripartite Meeting to discuss customs and the enforcement of intellectual property rights.^[37] With an agreement acknowledging that violations of intellectual property harmed the economy, the Tripartite moved ahead with an initiative called the Fake Zero Project fostering cooperation among their customs. The initial project began with an information sharing tradeoff to counter high-level counterfeit operations. Over the years, the project has diversified to craft public awareness activities and further information exchange about legislation and specific cases.

However, the comprehensive 2009 report by the Customs & Tariff Bureau in the Japanese Ministry of Finance revealed that 81.5 percent of counterfeit goods suspensions originated from China.^[38] Korea, the second largest source, made up 12.4 percent of suspensions.^[39] Among not only the Tripartite countries, but Asia more generally, Japan has had the most success in nullifying domestic counterfeit production and reducing counterfeit products’ importation.

Conclusion: How Can Other Countries Implement the Japanese Model?

Japan’s success in thwarting counterfeit items entering the country lies in the thorough inspection by customs agents of each package entering the country.^[40] While Japan certainly benefits from being a smaller country with a commensurately large population to more effectively police its imports, thorough inspection seems to be one of the only effective methods to safeguard intellectual property rights.

A stricter process for the importation of foreign products might include the hiring of more customs agents, enforcing physical inspections of each package, and clearly defining the process of resolving such issues. The U.S. houses many of the fashion houses producing popular designer goods and also 42 percent of the global art market.^[41] Mimicking Japanese intellectual property policies would allow the U.S. to protect the numerous artists and designers centered in the nation, as well as unaware consumers of counterfeit goods.^[42] Such an endeavor would greatly strengthen the U.S. economy, curtailing illegitimate activity which cuts businesses’ profits and deprives the government of tax money.

While costly, the stringency of counterfeit laws in Japan successfully protects intellectual property rights—an expense which may prove worthwhile with the continuous influx of counterfeit goods into the United States. In the process of integrating these laws, Japan has made itself into a destination for authentic goods and opened itself to a new audience for tourism.

About the Author:

Anjali Krishna is a student of Art History and English in Liberal Arts Honors at the University of Texas at Austin. She is currently completing an intersectional research project about the New York School of painters and poets as a Mellon-Mays Fellow and curating The Modern Cowboy for the Visual Arts Center in Austin.

Suggested Readings

Kenji Tosaki, Hiroki Tajima, Nagashima Ohno & Tsunematsu, Trade Marks 2022—Japan: Trends & Developments (2022).

Clarissa A. Rodriguez & Laura M. Reich, Reversing the Silk Road: The Rapid Rise of the Art Market in Asia and Its Implications, 34 Int’l L.Q. 10 (2018).

Annette Meier, Notorious Art Forger Sold Counterfeits to Japanese Museums, Art Asia Pacific (Aug. 12, 2024).

References

1. Lululemon, Hermes Copies Entice China’s Shoppers Away From Labels, Bloomberg News (Aug. 9, 2024), available at https://www.bloomberg.com/news/articles/2024-08-29/china-hermes-lululemon-designer-dupes-a-hit-as-shoppers-try-to-save-money. ↑
2. Tokyo Customs, Operations Div., Intellectual Prop. Ctr., Strengthening Border Control Measures for Counterfeit Products, Japan Customs (Oct. 1, 2022) [hereinafter Strengthening Border Control Measures], available at https://www.customs.go.jp/mizugiwa/chiteki/pages/d_010/index_e.html. ↑
3. Customs & Tariff Bureau, Ministry of Fin., IPR Protection: The Role of Japan Customs (2010), available at https://japanantifraud.org/wp-content/uploads/2020/04/IPR-Protection-The-Role-of-Japan-Customs.pdf. ↑
4. See Trademark Overview, Japan Patent Att’ys Ass’n (2021), available at https://www.jpaa.or.jp/en/ip-information/trademark-overview/; U.S. Gov’t Accountability Off., GAO-20-692, INTELLECTUAL PROPERTY: CBP Has Taken Steps to Combat Counterfeit Goods in Small Packages but Could Streamline Enforcement 23–24 (2020) (describing U.S. Customs and Border Patrol’s difficulties in inspecting every package), available at https://www.gao.gov/assets/710/709987.pdf. ↑
5. Vivienne Chow, Japan Boasts the World’s Third Largest Economy. So Why Does It Still Have a Disproportionately Small Share of the Global Art Market?, Artnet (Nov. 7, 2022), available at https://news.artnet.com/market/japan-art-market-2205158; The Top Ten Largest Economies in the World in 2025, Forbes India, https://www.forbesindia.com/article/explainers/top-10-largest-economies-in-the-world/86159/1 (Jan. 10, 2025, 8:32 AM EST). ↑
6. Clarissa A. Rodriguez & Laura M. Reich, Reversing the Silk Road: The Rapid Rise of the Art Market in Asia and Its Implications, 34 Int’l L.Q. 10, 10 (2018).. ↑
7. Eri Sugiura, Japan Sculpts New Tax Rules in Push to Become Asian Art Hub, Nikkei Asia (Apr. 30, 2021, 3:07 AM EDT), available at https://asia.nikkei.com/Life-Arts/Arts/Japan-sculpts-new-tax-rules-in-push-to-become-Asian-art-hub. ↑
8. Id. ↑
9. Id. ↑
10. Vivienne Chow & Cathy Fan, Decades After Its Boom, Can Japan’s Art Market Make a Comeback?, Artnet (July 12, 2024), available at https://news.artnet.com/market/japan-art-market-comeback-2511212. ↑
11. Fake Japanese-Style Found in Circulation After Probe, Kyodo News (Feb. 8, 2021, 9:48 AM EST), available at https://english.kyodonews.net/news/2021/02/8b426e30189c-71-japanese-style-art-prints-sold-by-department-store-suspected-fake.html?phrase=korea%20trump&words=. ↑
12. Yomiuri Shimbun Editorial Bd., Circulation of Fake Prints Was an Act of Betrayal that Shook Japan’s Art World, Japan News (Feb. 21, 2021, 11:10 PM EST), available at https://japannews.yomiuri.co.jp/editorial/yomiuri-editorial/20210221-93364/. ↑
13. Id. ↑
14. Id. ↑
15. Id. ↑
16. Annette Meier, Notorious Art Forger Sold Counterfeits to Japanese Museums, Art Asia Pacific (Aug. 12, 2024), available at https://artasiapacific.com/news/notorious-art-forger-sold-counterfeits-to-japanese-museums. ↑
17. Id. ↑
18. Id. ↑
19. Customs & Tariff Bureau: Ministry of Fin., Overview of Verification Procedures, IPR Border Enforcement, available at https://www.customs.go.jp/mizugiwa/chiteki/pages/c_001_e.htm (last visited Feb. 6, 2025). ↑
20. Id. ↑
21. Id. ↑
22. Ariga Int’l Patent Off., Anti-Counterfeiting Measures in Japan (2016), available at http://www.ariga.co.jp/en/files/html/html-110/index.html?2147483647. ↑
23. Customs & Tariff Bureau, Ministry of Fin., IPR Border Enforcement for Rights Holders, IPR Border Enforcement, available at https://www.customs.go.jp/mizugiwa/chiteki/pages/b_001_e.htm (last visited Feb. 6, 2025). ↑
24. Ariga Int’l Patent Off., supra note 22. ↑
25. Id. ↑
26. Trademark Overview, supra note 4. ↑
27. Kenji Tosaki, Hiroki Tajima, Nagashima Ohno & Tsunematsu, Trade Marks 2022—Japan: Trends and Developments 3–4 (2022), available at https://www.noandt.com/wp-content/uploads/2022/03/chambers_JAPAN-TD.pdf. ↑
28. Id. ↑
29. Shōhyō-hō [Trademark Act], Law No. 127 of 1959 (Japan). ↑
30. Kanzei-hō [Customs Act], Law No. 61 of 1954 (Japan). ↑
31. Id. ↑
32. Id. ↑
33. Id. ↑
34. Strengthening Border Control Measures, supra note 2. ↑
35. Fusei kyōsō bōshi-hō [Unfair Competition Prevention Act], Law No. 47 of 1993 (Japan). ↑
36. Japan Patent Off., Countermeasures to Counterfeiting Problems 26 (2007), available at https://www.jpo.go.jp/e/news/kokusai/developing/training/textbook/document/index/countermeasures_to_counterfeiting_problems_2007.pdf. ↑
37. Customs & Tariff Bureau, Japan Ministry of Fin., IPR Protection: The Role of Japan Customs—Report on IPR Enforcement in 2009, at 18 (2009), available at https://japanantifraud.org/wp-content/uploads/2020/04/IPR-Protection-The-Role-of-Japan-Customs.pdf. ↑
38. Id. at 24. ↑
39. Id. ↑
40. See Yoshihiro Nagahashi, Counterfeiting and Piracy: A Global Interview 27 (2011), available at https://www.wipo.int/edocs/mdocs/aspac/en/wipo_ipr_pnh_11/wipo_ipr_pnh_11_ref_t2.pdf. ↑
41. Pearl Lam, Eight Trends in the 2024 Global Art Market, Forbes (May 16, 2024, 9:00 AM EDT), available at https://www.forbes.com/councils/forbesbusinesscouncil/2024/05/16/eight-trends-in-the-2024-global-art-market/. ↑
42. The Economic Impacts of Counterfeiting and Piracy – Report prepared for BASCAP and INTA, International Chamber of Commerce (2017), available at https://iccwbo.org/news-publications/policies-reports/economic-impacts-counterfeiting-piracy-report-prepared-bascap-inta/#:~:text=This%20report%20shows%20that%20the,vital%20public%20services%2C%20forces%20higher. ↑

 

Cover Image: Irina Tarsis