CHINA FOCUS
it down. Te law is better suited to smaller sites, which are wholly fraudulent rather than sites selling a mixture of genuine and non-genuine goods.”
Taobao does offer a ‘notice and takedown’ procedure though. In 2011, it
removed 63
million listings, up a staggering 49 million from the previous year.
However, these procedures can take up to several weeks to complete. “Tis slow speed makes it extremely difficult to combat sales of counterfeits on online marketplace websites because infringing products can continue to be sold in this period,” says Chatterton. “Tis kind of policing is ultimately reactive—we recommend that brand owners should try to use online sales to track down the source of the products supplying the retailer, rather than just attacking the online retailer,” he says.
Although both Taobao and Alibaba are
improving their efforts to remove rogue retailers’
are dealing with hundreds of
accounts, their administrators millions of
listings. The procedures may not be wholly satisfactory from a brand owner’s point of view, but the sheer scale of the task can be overwhelming.
Against this daunting backdrop of
counterfeiting, the Chinese government is increasingly on hand to help trademark owners. Since October 2010, it has spearheaded the ‘Special IPR Campaign’ to target a broad range of IP violations, including counterfeiting on the Internet. The initiative has especially targeted sites selling audio-visual products, electronic appliances, apparel, medicine and baby products.
During the campaign, the authorities have shut down numerous websites and online stores, and sites such as Taobao have worked in tandem with the government
measures to prevent infringement, measures E-land had requested.
Although the court said the Internet service providers (ISPs) are not liable for their users’ infringements because they cannot
cosmetics,
usually
foresee or prevent the infringement, it found Taobao jointly liable with the seller. The courts said ISPs will be found jointly liable if, in light of their knowing that users are infringing others’ marks, they continue to provide services to that user or do not take appropriate action to stop them.
to detect
the counterfeiters. In its Special 301 Report of 2011, the US government commended China’s improving enforcement efforts, and Chatterton says the perception among trademark owners is that the campaign itself has been “reasonably effective”.
But there is hope for brand owners, following the landmark decision in 2011 in the case of E-land v Taobao. South Korean clothes manufacturer E-land filed seven complaints with Taobao about goods sold on the site that infringed its trademarks. Despite deleting the infringing links, Taobao failed to take
“The Supreme People’s Court’s selection of the E-land v Taobao case as one of the top 10 IP cases of 2011 will hopefully spur large commercial platform providers such as Taobao to
streamline their takedown procedures
and take stronger action to close infringers’ accounts,” says Chatterton.
Like its economy, China’s attitudes to online counterfeiting
are still developing and the
ability to enforce trademarks can hit several stumbling blocks. But it must not be forgotten that brand owners are up against wide-scale and sophisticated operations, and they need to be just as smart as the counterfeiters.
www.worldipreview.com Trademarks Brands and the Internet Volume 1, Issue 3 25
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