IP SUMMIT 2010
Raising awareness among buyers of counterfeits about social and environmental issues is fundamental and part of Lacoste’s corporate responsibility.
Lacoste also partners with law enforcement agencies worldwide to dismantle underground illegal organisations, conducting counterfeit seizures and legal actions, whether administrative, civil or criminal.
Where do you find most of the counterfeits (eBay, Amazon, other auction websites, etc.)?
It varies from one country to another depending on the market share of the marketplaces offering both auction and classified services. Tose displaying a mixed offer of authentic second- hand Lacoste products and counterfeits generate a confusion highly detrimental to the Lacoste brand and are as such a major concern.
Whose responsibility should it be to police the online marketplace (Lacoste, individual websites, search engines)?
Fighting counterfeiting is a global responsibility.
It is the brand’s primary responsibility, but everyone at every level—from consumers to governments, through each economic actor of the brick and mortar and online trade—could and should co-operate to police the global marketplace, and prevent and stop counterfeiting.
Partnering will make a difference.
Is the legal position clear, as far as you are concerned? Does it vary across the world?
Some online marketplaces have tried to escape their responsibility regarding the sale of counterfeits by claiming safe harbour provisions originally draſted for Internet hosts having a passive but key role regarding the functioning of the Internet.
Hopefully, there are now more and more rulings to clarify the status of online marketplaces and related responsibility. On September 3, 2010, the Paris Court of Appeal upheld a 2008 ruling of the Paris Commercial Court confirming eBay’s monitoring obligation as a service provider, eBay’s gross negligence and misconduct regarding counterfeit sales on its marketplace and eBay’s negligent liability. Te Paris Commercial Court limited its jurisdiction to
eBay.com,
eBay.co.uk and
eBay.fr, and therefore sentenced eBay to pay a reduced but nonetheless outstanding amount of damages of over €5.5 million.
Earlier in 2010, French Courts sentenced eBay for the purchase on search engines of keywords similar to well-known trademarks to promote its own business and for contributory liability in a criminal case.
Is there anything you’d like to change about the way that search engines/retail sites/legislators/service providers approach this issue?
Partnership should become the global standard.
In addition to the notice and take-down policies provided by online marketplaces and search
engines, those Internet actors should partner with brands and make brand’s enforcement efforts more efficient through the effective implementation of proactive and preventive measures, in particular against bad faith vendors.
Such partnership has already started in France with the signature on December 16, 2009 of a charter under the patronage of Christine Lagarde, Minister for Economy and Finance. Lacoste and Price Minister, the number one marketplace in France are among the signatories. eBay and Amazon are not.
Other online marketplaces such as Japanese websites Yahoo!Japan and Rakuten Auctions signed similar but bilateral co-operation agreements early in 2009 and more recently on September 24, 2010.
Co-operation is also on discussion at the European level within the Internet Stakeholder Dialogue, set up in March 2009 by DG Markt.
What do you think should happen with the e-commerce directive?
Te current issue is not the European e-commerce directive itself.
It’s more about the confusion resulting from the opportunist strategy and misleading interpretation of the host status by some leading Internet players who unfairly tried to make profits out of counterfeit sales without being held liable for that.
www.worldipreview.com
World Intellectual Property Review November/December 2010
47
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