A necessary response to a serious issue for consumers and businesses alike
In 2008, the French government made the fight against online counterfeiting the top priority of its national IP policy agenda. The situation back then was critical: online sales of fake products dramatically increased and triggered waves of complaints from aggrieved consumers, led to litigation between brand owners and e-commerce platforms, and damaged the public image of e-commerce.
The key issue was how to stop online sales of counterfeit products without harming the booming business of e-commerce. The French government initiated a dialogue between e-commerce platforms and IPR holders. After nine months of consultations and negotiations led by the President of the National Anti-Counterfeiting Committee (CNAC), and supported by the French Industrial Property Office (INPI), an arrangement was found between the major e-commerce platforms and over 500 French and international brands. The charter provided a set of preventive measures and reactive procedures, to be implemented through continuous cooperation between the parties.
Filtering as the key for efficient detection
First, technical detection tools (filters) based on information provided by IPR holders were set up by e-commerce platforms. These tools include key words showing the counterfeit nature of the products offered for sale, identity verifications, identification of dubious offers, an analysis of sellers’ profiles and behaviours and detection of repeat offenders.
The charter also provides reactive measures so that action can be taken against counterfeiters. Rights holders can use a simplified notice and takedown procedure. Sanctions against sellers of counterfeit goods can include a six-month suspension or closing of their accounts, plus measures to prevent re-registration. Sellers must also prove the authenticity of the products or the authorisation of the IP rights holders.
Over the following 18 months, the parties implemented anti-counterfeiting mechanisms and exchanged information. The first results were very encouraging.
Immediate and inspiring results
The volume of online fake products significantly decreased or simply disappeared, and so did the number of claims.
A direct and solid dialogue is now established between stakeholders and government. An annual assessment of this mechanism regularly highlights the positive impact of these solutions. This soft law providing efficient preventive tools became a standard in France. The French ‘’Charter of confidence’’ is also widely promoted abroad as an example of good practice. It inspired a similar initiative adopted at the EU level in 2011. In 2012, two more agreements were signed in France between IPR owners and classified advertising platforms, and with postal operators.
In France – and in Europe – the challenge is now to widen the scope of this type of cooperation by including other intermediaries such as advertising service providers, payment services and shippers.
The lessons for IPR enforcement online in China
It is crucial to tackle the problem before it is too big. The Chinese central government is currently encouraging local police and administrative enforcement authorities to become more active in monitoring and investigating online counterfeiting.
Together with large French companies, the French authorities are developing contacts with the major Chinese e-commerce platforms, social media platforms and search engines to offer assistance for implementing filters and improving notice and takedown procedures. Detecting obvious and recurring fakes is technically possible and useful for both sides. For instance, collaboration with e-commerce platforms consists of rights owners identifying trends and platforms setting up proactive measures to prevent similar ads from being published in the future. A step-by-step approach based on mutual trust and a win-win spirit will build confidence that filtering is a necessary and efficient tool to reduce IPR infringements and deter counterfeiters.
In China, detection tools could soon become the new standard. But to achieve this goal, the cooperation of companies is necessary and more international brands owners should integrate this requirement in their dialogue with internet companies. Only by working all together we can ensure that IP rights are respected online.
Jean-Baptiste Barbier is the representative of the French IP Office in China and Counsellor for IP at the French Embassy in Beijing.
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