According to Oberlo, online shopping is preferred by a third of global consumers. Most of them make purchases on marketplaces.
A marketplace is a digital trading platform that allows third-party sellers to sell goods through their website. The goods are uploaded to the general catalog of the marketplace and placed next to the offers of other entrepreneurs. Marketplaces are very popular among buyers and merchants, for whom trading platforms have become one of the main sales channels.
From the outside, a marketplace website resembles an online store: it has a catalog, product categories, a shopping cart, etc. At the same time, such a digital store has its own characteristic features that distinguish marketplaces from simple online stores.
First, marketplaces have a very large assortment of goods. The site can sell hundreds of thousands of items for a variety of categories: from clothing to construction tools.
Secondly, the goods on the marketplace belong not to one seller but to many. The marketplace provides merchants with the technical basis for their activities and rarely engages in sales on its own.
Speaking of marketplaces with a huge number of ads, including both original and counterfeit goods, given the volume of offers from the site administration, it is difficult to monitor and detect all intellectual property infringements.
The Internet is an ideal place to infringe intellectual property rights without being noticed. Although marketplaces are usually not direct infringers, they provide the technical means to do so. On the other hand, online stores have the ability to stop such infringements.
Specifics of intellectual property rights infringement
The categories of infringement can be divided into different types depending on the objects they infringe on: copyright, trademark, or patent infringement.
Copyright infringement is extremely relevant for Ukraine, as there are a large number of goods on sale that contain copyrighted material.
The main manifestations of such violations are:
- illegal use of images
- unlawful reprinting and sale of literary works, use of other people’s texts
- illegal creation and sale (and processing) of derivative works
What is the «safe harbor» doctrine?
Safe Harbor is a well-known American approach whereby an intermediary service provider (marketplace) is released from liability for violations if two conditions are met – there is a real opportunity to file a complaint about the violation; – the provider effectively responds to the received complaints: removes or blocks
the infringing content (provides information about the infringer).
However, the provider is not exempt from liability if it has taken certain active auxiliary actions in the commission of the offense (for example, promoting the counterfeit ad).
In order to protect intellectual property after detecting an infringement, the first step is to contact the infringer and try to reach an amicable agreement to terminate the infringement or, if it is economically viable, to grant the infringer a license. However, this approach does not always work. If no agreement can be reached, filing a complaint on the marketplace where the infringement was recorded will be effective. The final step, if the previous ones are unsuccessful, is to apply to the court for the restoration of violated rights.
Features of the Amazon platform
Interestingly, since 2020, the total number of reports of intellectual property rights infringement on the platform has decreased by an average of 30%, while the number of goods available for sale continues to grow.
According to Diana Portna, an expert in trademark protection on international marketplaces, it is very difficult to compete on Amazon without registering a trademark with the Amazon Brand Registry. This tool was launched in 2017 and provides access to various features, including improved product search by text and images, automation of infringement prediction based on notifications of suspected intellectual property rights violations, as well as expanded powers in this area.
The marketplace offers the possibility to file a complaint through a special form, which should include:
- Identification of the object whose rights you consider to be violated
- The nature of the violation (whether the violation occurs on the product, the physical packaging of the product, the image on the page with a detailed description of the product, or the text on the page with a detailed description of the product)
- A list of infringing products (including Amazon Standardized Identification Numbers (ASINs) and/or URLs of product detail pages)
- Contact information (name, address, phone number, email address, and additional contact information that the platform may share with the infringing sellers)
- Supporting documentation or any other additional information that will help Amazon process your complaint (for example, order IDs for test purchases of the products you are reporting)
Features of the PROM platform
The platform actively removes products that contain undeniable signs that they are counterfeit. These are items with the words “copy/replica” in the title or description, etc. Such goods are removed without notice, and the seller cannot restore them.
PROM offers rights holders to sign memoranda of cooperation. The agreement stipulates that the owner of an intellectual property object sends a package of documents and his or her contacts. After that, to stop the infringement, the rights holder only needs to provide a list of links to the goods.
The procedure for filing a complaint is to write an email with arguments to the website’s email address. After sending the letter, you will receive an auto-reply with the ID of the complaint. Processing of the appeal usually takes 1-2 business days (in exceptional cases – no more than 7 business days).
Features of the OLX platform
In order for the complaint to be considered by the OLX.ua Administration, you must send a request through a specially created form and provide the following information in this form:
- Documents confirming the rights to the intellectual property object
- A power of attorney to represent the interests of the copyright holder, if the request is submitted by a representative
- The number of each advertisement (or a link to such an advertisement) that, in the opinion of the right holder, violates his/her rights
- Contacts of the right holder
After verification of the information and documents provided, the ads specified in the request may be removed. If two or more substantiated complaints are received from the copyright holder for one account, the profile will be blocked for repeated violations of the rules.
Protecting intellectual property on marketplaces is critical to ensuring that the rights of rights holders are respected and that the marketplace functions efficiently. Each platform has its own protection mechanisms, including complaint procedures, seller verification, and cooperation with rights holders.
Marketplaces are working to improve seller verification systems, which reduces the number of counterfeits and infringements. Cooperation with rights holders and legal support contribute to the effective detection and combating of infringements. In addition, educational programs for sellers and buyers raise awareness of the importance of protecting intellectual property.
Thus, the protection of intellectual property on marketplaces requires coordinated efforts from platforms, rights holders, and users. Implemented policies and mechanisms are an important step in ensuring legal security and maintaining trust in online commerce.
copyright / intellectual property / marketplace / “safe harbor” doctrine
