5. Governance frameworks
This section sketches governance frameworks to counter proliferations of counterfeits developed either by public authorities, and some best practices developed by the on-line industry. It explores the different roles that government is playing with respect to governance and the actions that some are taking to address certain issues in their jurisdictions, and the efforts that some of the largest market platform operators are making to enhance the trust of sellers and buyers alike in their platforms.
In many jurisdictions, policymakers have recognized challenges related to proliferation of counterfeit goods in the e-commerce environment. The risks posed by counterfeits online for consumers, innovation and the damages it can cause to the economy are vital threat that is being addressed by policymakers in a number of ways. Actions focused on precise regulations, consumer protection, streamlining of liability, enhancement of cross-industry co-operation etc.
Industry has been also active in this area, and developed a number of best practices, and efforts. There are many examples of mechanisms to flag the presence of fake goods on online platform, to resolve disputes between sellers and consumers in a fair and timely manner, or to ensure that platforms’ terms and conditions includes their commitment not to sell counterfeit products.
In many jurisdictions, governments have been active in addressing issues concerning bad actors and e-commerce fraud in recent years, in a variety of ways, by encouraging co-operation with and among stakeholders, and through specific initiatives designed to improve the functioning of e-commerce.1
In Australia, a pilot project is underway which seeks to authenticate the merchandise being sold on a platform (OECD, 2021[26]). In 2019, IP Australia, the government agency which is responsible for administering intellectual property (IP) rights and legislation relating to patents, trademarks, designs and plant breeder's rights,2 developed a Smart Trade Mark mechanism, which is designed to help business and consumers determine whether the products that they are purchasing are authentic (i.e. not counterfeit), using block chain technology. The system enables trademark holders to request IP Australia to attach a business-critical artefact, which in the case of Smart Trade Mark is a URL, to the government’s trademark registry. The link can then be verified using Amazon’s Quantum Ledger Database (QLDB) service.3
In the European Union key governance actions to counter the abuse of e-commerce in trade in counterfeit goods are centred at the European Commission, and the EU Agencies, such as the EUIPO. The key initiative is the Memorandum of Understanding (MoU) on the Sale of Counterfeit Goods on the Internet facilitated by the European Commission. In addition, the EU considers two pieces of legislation in the e-commerce area: the Digital Markets Act (DMA) and the Digital Services Act (DSA). Last, the EUIPO administers and implements some specific systems, including implementation of the MoU.
Apart from the European Commission and the EU Agencies, EU member states were also taking governance actions to address this risk. An illustrative example are measures taken by Belgium (Box 5.1).
In Belgium, counterfeiting levels remain high, but there has been progress in fighting the problem, reflecting the success of the operation In Our Sites (IOS) which was carried out in co-operation with Europol in 2018, with the support of FPS Economy, EURid, DNS Belgium and customs authorities. In 2019 and 2020, some 990 and 1,016 sites, respectively, were shut down. While the number of closures edged upward, it did not match the significant growth in online sales during the pandemic, which is seen as a positive sign.
The Belgian approach has been a proactive one, with increased attention being paid to registration procedures. Until recently it was relatively simple to set up a domain. After entering basic information, a site would be operational immediately. Once online, applicants would have 14 days to correct any incorrect or fraudulent data, with site closure occurring if no action was taken by the registrant to correct information. With a view towards better protecting consumers and rights holder, EURid and DNS Belgium developed a new screening procedure to identify suspicious sites. Every new domain name is checked against a series of parameters to determine if it is suspicious. If the domain name matches several of the parameters, an 8-step verification process is triggered, which requires applicants to provide proof of identity. Activation of the site is only granted at the conclusion of the verification process. Thousands of suspicious sites are being detected annually, resulting in a significant slowing of the activities of scammers.
The IOS operation has also had a large impact in other economies. Some 21,910 websites were taken down during the operation in the 15 EU member states and 12 non-EU countries taking part in the operation, and counterfeits valued at more than EUR 2.5 million were seized. In addition to Europol, Eurojust played an important role in the operation.
Memorandum of Understanding on the Sale of Counterfeit Goods on the Internet
In May 2011, major online platforms and rights holders for goods for which counterfeit and pirated versions are sold online (e.g. fast-moving consumer goods, consumer electronics, fashion and luxury goods, sports goods, films, software, games and toys) entered into a Memorandum of Understanding on the Sale of Counterfeit Goods on the Internet (MoU).4 The MoU was revised and signed again in 2016, to include key performance indicators (KPIs) that are designed to track its impact and measure its success.
The purpose of this voluntary agreement is to promote good practices in the fight against the sale of counterfeit goods over the Internet and to enhance collaboration between the signatories, focusing on co-operation rather than litigation to achieve results (EC, 2020b[27]) and (EC, 2013[28]). The MoU can be considered a ‘laboratory’. Reported practices could set a standard for signatory online platforms and rights owners, and may prompt stakeholders not involved in the MoU to perform better in the fight against counterfeiting at national, EU and international level. The agreement is an example of how industry self-regulation can be used to address an important policy issue, with important governmental support.
The MoU contains a series of commitments by rights holders and Internet platforms to work together to combat online counterfeiting (EC, 2016[29]).The commitments are extensive, covering i) notice and takedown procedures, ii) the proactive and preventive measures that signatories could or should take to address counterfeiting, iii) tackling repeat infringers, iv) the co-operation, including sharing of information, among signatories, v) consumer confidence, information and protection and vi) the supportive role that signatories should play with customs and other law enforcement authorities in their investigations and actions to combat counterfeiting activities.
The European Commission is not a signatory, but it plays a facilitating role, e.g. by organising the meetings and ensuring that all signatories act constructively and in good faith (EC, 2013[28]). The Commission is also responsible for preparing an annual report, if needed, on the functioning and application of the MoU. To date, three reports have been issued: a 2013 report on the initial MoU (EC, 2013[28]) and two reports on the 2016 MoU, in 2017 (EC, 2017[30]) and 2020 (EC, 2020b[27]).
The EUIPO plays an important role in KPIs and the data collection exercises: it aggregates and analyses the agreed results reported by the signatories, then sends them to the Commission and the signatories. It acts as a trusted party and ensures the confidentiality of individual submissions and a neutral, non-discriminatory evaluation process.
The agreement is not a legally binding instrument and does not create any contractual or pre-contractual obligations under any law or legal system, nor does it create any liability, rights, waiver of any rights or obligations for any parties or as releasing any parties from their legal obligations. As of 7 October 2021, there were 32 signatories to the MoU, including 15 rights holders, 9 Internet platforms, and 8 industry associations. While the number of participants has increased over time, as discussed below, there have also been few withdrawals (EC, 2020b[27]).
The majority of signatories assess their collaboration under the MoU positively, indicating that close cooperation and information exchange is key to improving the efficiency and effectiveness of their anti-counterfeiting measures. The signatories appreciate that the MoU is a good platform for exchanging information, allowing them to discuss the challenges in online counterfeiting in a regular and pragmatic manner. The initiative has also been of significant value to the Commission in carrying out its other work on anti-counterfeiting.
Legislation
Two pieces of legislation are currently being considered by the European Union in the e-commerce area: the Digital Markets Act (DMA) and the Digital Services Act (DSA).5
The Digital Markets Act (DMA) aims to ensure contestable and fair markets in the digital sector across the Union where gatekeepers are present. In particular, it aims to address unfair practices6 and practices that could undermine the contestability of markets in the digital sector being carried out by gatekeepers and thereby enhance fair and contestable online platform environment. The gatekeepers concerned with the Digital Markets Act serve as the integral connection between online businesses and consumers in relation to provision of core platform services, such as online intermediation services, video-sharing platforms or online search engines.
The Digital Services Act (DSA)7 is directed at providers of online intermediaries, including online platforms and online marketplaces, social networks, content-sharing platforms, app stores, and online travel and accommodation platforms. Importantly, some of companies concerned by the DSA could be also concerned by the DMA.
The intention of the DSA is to establish a common set of rules for actors in the online ecosystem to counter illegal content, including illegal products such as the trade in counterfeit. For example, the DSA proposal introduces a notice and action mechanism that allows user to notify the presence of an illegal product. The proposal gives also the possibility for judicial or administrative authorities to send cross-border removal orders to providers of intermediary services.
The DSA includes also more transparency requirements for online platforms. For instance, user will have to be clearly informed whether and why they are targeted by each advertisement and who paid for the advertisement. . In addition, online marketplaces will also be obliged to gather information on traders, to enhance transparency and raise trust for consumers.
In addition, the DSA will also introduce a system of trusted entities that flag illicit content (e.g. brand owners or industry associations combatting counterfeiting) and to which platforms will have to react with priority.
EUIPO
The EUIPO has been working on a strategic project aimed at enhancing IP protection on e-commerce platforms which involves gathering information about the IP protection programs in place at different platforms, such as eBay, Amazon, Alibaba, Facebook and others. The information is being put on a single webpage to assist IP owners in navigating through the different programs, particularly with respect to the different notification mechanisms.
In addition, the EUIPO is the key actor in the implementation of the MoU on the Sale of Counterfeit Goods on the Internet (as described above).
The agency is also developing a system that will enable platform operators to identify brand owner contact points in case of different areas of IP infringement. There is also interest in developing a secure system that will allow IP owners to report information on infringement, which could then be accessed by all platform operators, thereby facilitating and enhancing the effectiveness of the information sharing.
Gathering and dissemination of knowledge on online practices infringing IPR is important part of EUIPO activity. Among others EUIPO published reports on online business models used by infringers (EUIPO 2016, EUIPO 2017, EUIPO 2019) and role of social media (EUIPO 2021a) in supporting recurrent IP infringement for physical products and digital content. Recent EUIPO reports document best practices used by platforms and domain registrars to reduce the risk of online infringement (EUIPO 2021b, EUIPO 2021c).
In 2012, the United Kingdom established a strategic objective to make UK domains the safest in the world for consumers and legitimate businesses to trade. Doing so required the government to engage with domain registrars in order to move against sites selling counterfeits. This resulted in the launching of Project Ashiko where funding was provided to the London Police Intellectual Property Crime Unit (PICPU). Under the project, referrals on infringing websites generally selling fake consumer goods are submitted by brand owners, which supply evidence that goods being sold are counterfeit (Group, 2020[31]). After due diligence is undertaken by PIPCU, details are sent to Nominet, the UK registrar, which organizes the suspension of the infringing domains. The initiative resulted in 135,000 sites being taken down over seven years.
The National Intellectual Property Rights Coordination Center (IPR Center) is a US Government body overseen by US Immigration and Customs Enforcement, a part of the US Department of Homeland Security (DHS). The center co-ordinates the US government's enforcement of intellectual property laws. In late 2017, the center established an E-Commerce Working Group (ECWG) with key Internet platforms. For a variety of reasons, including competition law and trade secrets protection, various stakeholders in the e-commerce supply and distribution chains historically had not shared information on problematic sellers, shippers, freight forwarders, brokers, and other third-party intermediaries involved in counterfeit trafficking. The ECWG sought to address this by providing a platform through which the four platforms could share information, which was anonymized by the government, with each other. The presumption was that the same counterfeiters were undoubtedly acting across all the platforms, which proved to be the case, and that sharing information would help to develop better intelligence on their activities. The exercise enabled the IPR center to identify targets for civil and criminal prosecution; sharing the information with other US law enforcement bodies, such as Customs and Border Protection, was also beneficial in this regard. The focus of the group was narrow, which was reflected in the membership of the group; rights holders, for example were not included. The narrow focus is seen as an important factor in its success.
The project proved to be highly successful, demonstrating the value of a robust exchange of data in i) providing platforms with the information needed to move against bad actors and ii) providing law enforcement information for further investigation and, eventually, interdiction. The platforms are advancing this work, by selecting a third-party vendor for building a large database to facilitate further data sharing, thereby reducing the role of government in the project, in a mutually agreed manner.
In January 2020, the DHS published a report on Combatting Trafficking in Counterfeit and Pirated Goods, which identifies 11 immediate actions to be taken to address counterfeiting problems, including development of an Anti-Counterfeiting Consortium to Identify Online Nefarious Actors (ACTION) Plan (DHS, 2020[32]).
The ACTION Plan, which builds on the work of the ECWG, comprises the following three elements (DHS, 2020[32]):
Sharing information within the ACTION framework on sellers, shippers, and other third-party intermediaries involved in trafficking in counterfeit and pirated goods.
Sharing of risk automation techniques, allowing ACTION members to create and improve on proactive targeting systems that automatically monitor online platform sellers for counterfeits and pirated goods.
In addition, ACTION members may enter non-binding memoranda of understanding (MoU) with the IPR Center, consistent with US law, to clarify the expectations and legal understanding for data sharing and coordinated IPR enforcement moving forward. Such MoUs will provide a vehicle to create a compliance scoring mechanism, as well as to delineate reasonable efforts to know the seller as well as the scope of products involved (e.g. fast-moving consumer goods, consumer electronics, fashion and luxury products, sports goods, software, and games, and toys).
The ACTION Plan is designed to strengthen information sharing between platforms, while engaging certain other e-commerce entities, including payment processors, shippers and search engines. The mechanism would also be used to communicate best practices back to the private sector, and to encourage the adoption of these practices, with the IPR Center to monitor, and report on the adoption of, and the progress and effectiveness of, these best practices. Ten practices were identified (DHS, 2020[32]):
1. Comprehensive "terms of service" agreements. Platforms are called on to conclude stringent terms of service agreements with vendors that provide a legal means to move against sellers of counterfeit goods
2. Significantly enhanced vetting of third-party sellers. Enhanced vetting would encourage platforms to require a seller to provide: sufficient identification, certification as to whether it has been banned from any major e-commerce platforms and acknowledgment that it is offering trademarked products.
3. Limitations on high-risk products. Protocols and procedures to place limitations on the sale of products that have a higher risk of being counterfeited or pirated and/or pose a higher risk to the public health and safety
4. Efficient notice and takedown procedures, including create and maintain clear, precise, and objective criteria that allow for quick and efficient notice and takedowns of infringing seller profiles and product listings
5. Enhanced post-discovery actions, including notification to any buyer(s) likely to have purchased the goods and notification to implicated rights holders.
7. Clear transactions through banks that comply with US enforcement requests.
8. Pre-sale identification of third-party sellers, factoring in the likelihood of being sold a counterfeit or IPR infringing merchandise.
9. Establish marketplace seller IDs. This would improve communication to the consumer in a more holistic view of “who” is selling the goods, linking all related sellers together and enhancing internal risk assessment.
With respect to next steps, some social media sites with e-commerce platforms have joined the consortia, and they are receiving special attention as they seek to implement improved practices. Increased attention is now being paid with social media sites, a number of which have joined the consortia which are also operating e-commerce platforms. With the aforementioned information sharing platform close to deployment, the identification of bad actors should be greatly facilitated. Overall, the need for all stakeholders involved in e-commerce to co-operate with one another in combatting online sales of counterfeits is great and efforts to ensure this are ongoing. The progress being made on all fronts will be examined in an upcoming report that is expected to be published in the third quarter of 2021.
Legislation
Legislation is currently being considered in the United States to address a number of e-commerce issues. The Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act (INFORM Consumers Act) would require online marketplaces to collect, verify, and disclose certain information from high-volume, third-party sellers.8
Another example is the Stopping Harmful Offers on Platforms by Screening Against Fakes in E-commerce Act of 2021 (SHOP SAFE Act). The Act is going to reduce the online availability of harmful fakes through a number of mechanisms. This would give ecommerce platforms liability for counterfeit products that pose a health risk. If harmful fake products are sold on the platform, the brand owner or customer could hold the ecommerce platform liable. In addition the Act creates incentives for online platforms to establish best practices such as vetting sellers to ensure their legitimacy, removing counterfeit listings, and removing sellers who repeatedly sell counterfeits.
Online platforms have themselves been developing policies and procedures for preventing their abuse by counterfeiters, either on their own, or in co-ordination with national authorities. Broadly speaking, these efforts and practices focused on sellers, buyers and right holders.9
Sellers
Actions that platforms can take and that are focus on sellers are rooted in comprehensive terms of service agreements that selling partners are obliged to agree to. Such agreements prohibit explicitly the sale of counterfeit products and they put sellers on notice of the consequences of doing so, providing the platform with a clear legal basis to take action. Such terms of service are applied by many platforms, including Amazon, Walmart or Mercado Libre. For example Amazon requires sellers that reach a specific sales level are to carry insurance to cover any potential damage caused by their products to a US consumer, regardless of where their products are manufactured.
Another seller-oriented practice concerns controls on sellers and products that can rely on algorithms, heuristics, machine learning capabilities and investigators. For example at Amazon, during registration, sellers are required to provide a government-issued photo ID and additional personal and financial information that is then verified to identify potential risks. Walmart also applies verification procedures to third party sellers prior to allowing them to operate on the platform. In addition, vetting is carried out for products prone to counterfeiting (e.g. luxury brands or electronics products) and high-risk geographic regions. Mercado Libre, an e-commerce platform founded in 1999, which now operates in 18 Latin American countries is rolling out a know-your-customer (KYC) approach. The KYC authenticates sellers on the platform, with a view towards combating all types of fraud including counterfeiting. Under the program, prospective sellers need to submit information and “proof of life” evidence that validates their identities, in order to operate on the platform. The initiative is already yielding positive results. In Brazil, for example, where there was a significant problem with the selling of counterfeit books, use of the KYC mechanism enabled the company to reduce claims from members of the program by 99%.
Consumers
Consumer-focused measures employed by platforms include in most cases additional information about sellers provided to consumers. This includes for example tools provided to sellers to share voluntarily more information about themselves and their products. It refers to such features like profile pages for sellers, store pages for brand owners and an in-house buyer-selling messaging service that allows customers to learn more about sellers and products.
Such options are provided by, for example, Amazon. Moreover, the platform informs customers whether they are buying directly from Amazon, or from a third party. In the case of the latter, seller contact information is provided on the product listing.
Brand owners
A large volume of anti-counterfeiting measures that platforms can employ is focused on brand owners, whose rights are infringed. Indeed brand owners have clear incentives to counter proactively the risk of counterfeits offered online, as for them it implies clear short and long term losses of foregone sales, deceived customers, and eroded brand.
Many of these measures are facilitated by public actors. For example the EUIPO has been working with a number of e commerce marketplaces to gather information on their IP protection tools to make it easier for relevant parties to take action and use the resources they make available.10
One of the fundamental measures is an efficient notification system that allow brand owners to report listings that are potentially infringing their IP rights. These systems vary across platforms and include web forms, or forms that can be downloaded and sent by email. The exact information required also varies; in most cases it includes information about company, your IP rights (e.g. trade mark registration number) and the allegedly infringing listings (e.g. URL). For example Amazon includes a notice and takedown mechanisms supported with additional scan of the platform for additional counterfeits.
Another example of an IP-right owner centred practice are IP protection programmes that are put in place by some online marketplaces to support their cooperation with IP owners. The programmes typically offer a simplified process for notice and take-down infringing listings and a dashboard to keep track of right owner’s notifications and their outcomes. In addition, they can facilitate searches for counterfeit listings. For example Amazon offers the brand registry that uses machine learning to scan for potential infringements. Another example is the Verified Rights Owner partnership program (VeRO) created by eBay in 1998. The program provides a mechanism for the rights owners to report on listings that infringe on their copyright, trademark, or other intellectual property rights to eBay, which then takes action to remove the listing.
A dedicated contact point is another example of a right-owner oriented practice. The contact point offers right owners assistance in case they are facing an issue using a notification system or joining an IP protection programme. For example eBay has dedicated brand protection managers who partner with brand owners to gather intelligence that is then used proactively to detect counterfeit products.
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Notes
← 1. Except as noted, the assessment is based on discussions carried out in 2021 with the countries concerned.
← 2. See https://www.ipaustralia.gov.au/about-us.
← 3. See https://docs.aws.amazon.com/qldb/latest/developerguide/what-is.html.
← 4. See https://ec.europa.eu/growth/industry/policy/intellectual-property/enforcement/memorandum-understanding-sale-counterfeit-goods-internet_en.
← 5. As for September 2021.
← 6. See https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en#new-rules-in-a-nutshell.
← 7. See https://ec.europa.eu/commission/presscorner/detail/en/QANDA_20_2348
← 8. See www.congress.gov/bill/117th-congress/senate-bill/936.
← 9. Except as noted, the assessment is based on discussions carried out in 2021 with the companies concerned.
← 10. See https://euipo.europa.eu/ohimportal/en/web/observatory/e-commerce