Action against online offers of counterfeit leaves much to be desired

React – an international organization that acts against counterfeit on behalf of more than 300 members including Adidas, Chanel, Secrid and Apple – criticized the fight against counterfeit by Bol.com in Het Financieele Dagblad earlier this month. Effective handling of reports about online offers of counterfeit products is crucial.

Earlier this year we wrote about the enormous range of counterfeit products on the internet, such as on online platforms and marketplaces. The online range of counterfeit products has increased sharply as a result of the corona measures.

Notice and takedown

It is important for rightholders to take quick and effective action against infringers and to limit the damage as much as possible. In this respect, the notice and takedown procedure is an effective means of dealing with the offer quickly.

By means of a notice and takedown procedure, rightholders can address an infringement of intellectual property rights to an online platform or marketplace in an easily accessible manner. The notification is assessed, after which an online platform or marketplace decides whether the product in question will be removed.

Major players such as Marketplace, eBay, Amazon, Bol.com and even AliBaba offer such a procedure. Below are the links to the procedures of those online platforms:

Depending on action

The rightholder does depend on the steps taken by the online platform. According to React, Bol.com does too little against counterfeit products with its notice and takedown procedure. For example, Bol.com asks the rightholder to first contact infringers themselves. And that is often practically impossible because providers of fake products often hide behind dubious companies. In addition, it can take up to fifteen days before Bol.com completes a notice and takedown procedure, as a result of which the trade in those counterfeit products continues as usual in the meantime. Other online platforms and marketplaces, including Marktplaats, often operate within one day.

According to React, Bol.com does not fulfil its responsibility to keep the platform clean. In our opinion, Bol.com therefore risks liability for facilitating the infringement of intellectual property rights. This is the case if an online platform or marketplace fails to remove a counterfeit product, or fails to do so promptly, after it has become aware of the infringement (for example, by notification of the rightholder in the context of a notice and takedown procedure).

The importance of a good notice and takedown procedure and effective handling is therefore high, both for rightsholders and for online platforms and marketplaces themselves. Especially now that the online offer of counterfeit products has increased so much this year.

Other measures

Of course, the way to court is always open to fight piracy, for example by seizing products found or obtaining a court order. Counterfeit at Europe’s external borders can also be stopped on request. This is a very effective measure.

3D printing

One area where the danger of counterfeit is also imminent, is 3D printing. We have set up the 3D Clearing House foundation for notice and takedown procedures at 3D printing platforms. Through this foundation we can take over the handling of notifications from the platform. Such support can also be provided for the handling of notifications on other marketplaces and platforms.

Want to know more or need support?

Are you a holder of intellectual property rights and do you want to combat (online) counterfeit? Or do you offer an online platform or marketplace and need support in drafting and executing your notice and takedown procedure? Or do you have other questions about (online enforcement of) your copyright, trademark or design rights? Please contact Ernst-Jan Louwers or Eva van Groezen or one of our other attorneys.

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