A collision last month between members of the International Anti-Counterfeiting Coalition (IACC) and ecommerce giant, Alibaba, is a tale of high emotions, larger-than-life characters and festering animosity between brand owners and the world’s largest online platform. Beneath the noise, however, are serious questions of how to cope with an ocean of fakes.
Courts worldwide are grappling with whether to place the burden of policing online counterfeit on platforms, rights owners or both. Brand owners chafe at having to commit vast resources to policing online platforms. Platforms protest that filtering every transaction and trying to determine what is counterfeit across all industry sectors is mission impossible.
We have been here before. The same problems plagued eBay. In 1999, I faced the company’s deputy general counsel, Jay Monahan, in a windowless law office in New York on behalf of a number of luxury brands. Rights holders were concerned that eBay was fostering an environment friendly to fakes. Mr Monahan was grappling with demands to rid eBay of deceptive offerings. To delist high volumes of fakes and avoid endless litigation, we had to to work together: we hammered out a constructive co-operation which has endured. How did eBay do it? By ceaselessly monitoring the seller listings on their back end and by putting extraordinary resources into developing cutting edge tools and strategies, including smart filtering, possibly the first notice-and-take down procedures for trade mark violations, stringent measures against repeat offenders and — crucially — fast response times (usually within hours) to take down notices. These methods were revolutionary then and still provide the gold standard for online retailers.
