Patents, Trade Marks, Designs & Copyright

How to protect your brand and products from counterfeiters on online marketplaces

Counterfeiters sell fake versions of popular branded goods on new, online marketplaces, how can you protect your business?

As businesses increasingly turn to major online marketplaces like Amazon, eBay, Facebook, TikTok and Etsy to sell their products, the risk of intellectual property infringement also rises. Counterfeiters look to take advantage of the anonymity and ease of setting up storefronts on these platforms to sell fake versions of popular branded goods.

This unlawful practice can severely damage the reputation, revenues, and even consumer trust for legitimate businesses. Counterfeit products are often inferior in quality and safety, potentially exposing customers to harm. No business owner wants to see their hard-earned intellectual property — whether it’s their brand name and logos, product designs, patented technology or other IP — being illegally exploited by counterfeiters.

As we will outline, many major online marketplaces have implemented tools, programs and reporting systems to help protect intellectual property rights and stop the sale of counterfeit goods on their platforms.

However, it is important to always seek professional advice before taking any action against a third party, even if it is via one of the tools mentioned below.  This is because in doing so it’s all too easy to make the situation worse, reduce the amount of relief you can obtain or, at worst, be held liable for making unjustified threat under UK law (see: here).

Once you have sought advice, here’s an overview of what might be available:

Amazon’s brand protection programs

Amazon has developed an impressive array of proactive brand protection measures. Their Brand Registry allows trade mark owners to enrol and provide Amazon with data like their registered trade marks and product manufacturing details. Amazon then uses this to automatically take down suspected infringing listings – for example, if a seller is shipping a product with your trade mark from a country you didn’t authorise.

Patent, design and copyright infringement can also be handled via a form which captures the relevant details.  Amazon then uses this to make an assessment of infringement and take down relevant listings if needed.

Enrolling also gives you access to image search, product serialization with Amazon’s Transparency program to prove authenticity, and the ability to quickly report potentially infringing listings for manual review. Amazon’s Counterfeit Crimes Unit even pursues civil litigation against alleged counterfeiters.

eBay’s Verified Rights Owner (VeRO) System

eBay provides an effective notice-and-takedown system through their Verified Rights Owner (VeRO) program. Once enrolled by providing details of your intellectual property rights, you can report any infringing eBay listings, which eBay’s team will promptly review and remove if legitimate.

VeRO members also gain other benefits like access to seller identity information and dedicated priority support for reporting infringement claims. Copyright owners can alternatively use eBay’s DMCA notice system.

Facebook’s IP reporting tools

While Facebook Marketplace is still relatively small compared to the major e-commerce sites, Facebook does provide ways for IP owners to report infringement. There are dedicated reporting forms for copyright and trade mark violations, as well as automated scanning tools like Rights Manager for uploaded audio/video content.

Facebook’s Commerce & Ads IP Tool is also helpful, allowing word trade mark searches across Marketplace posts, ads, and sales groups with a way to report any infractions found.

TikTok’s IP reporting tools

TikTok’s Marketplace is also relatively new but is growing fast and there are various forms that can be used to notify TikTok of potential IP right violations.  This includes: a general form for reporting IP Infringement; and dedicated forms for Copyright and Trade Mark infringement.

TikTok also publishes data on takedown requests which shows that in the period of Jan-Jun 2023, over 180,000 copyright violations were reported with 60% leading to removal of content.  In the same period, over 26,000 trade mark violations were reported with 56% being successful.

Etsy’s reporting portal

Etsy operates a dedicated IP ownership and reporting portal in which users can register their owned IP and submit reports of violations.

Before being able to submit reports of violations, users must first register their IP with Etsy which includes submitting details of the IP right which may include evidence that you own it or are authorised to enforce it.  Once this has been checked and approved by Etsy, you can then file violation reports in relation to one or more Etsy listings for review.  Once submitted, you can track the status through the Reporting Portal and will be notified of the outcome by email.

Conclusion and final tips

The most important thing to do when considering taking action against a potential infringer is to seek legal advice.  This will ensure you use the above tools to their full potential and obtain the best possible outcome.

Nevertheless, you should consider take the following steps:

  1. Register your trade marks, product designs, patents, and other IP rights to establish legal proof of ownership and enforcement. This will unlock many additional options for enforcement that are generally simpler and cheaper than enforcing unregistered rights. You should discuss this with a professional to ensure any applications made are cost-effective and align with your commercial goals.
  2. Actively monitor marketplaces for unauthorised sales of your products. Set up alerts and regularly search. You can also set up regular searching services related to registered IP rights through your professional advisor.
  3. Move quickly to deal with any suspected infringement by consulting your professional advisor and then taking action through the proper channels for each marketplace.
  4. Develop distinctive, proprietary branding elements that are difficult to copy, like unique logos or product designs.

Along with leveraging the tools provided by online marketplaces, it may be necessary to send cease-and-desist letters to counterfeiters and consider litigation if infringement persists.  This could be necessary in situations where the marketplace does not agree with you and your advisor’s assessment of infringement.

As always, the exact actions to take will depend on your individual circumstances.  You should discuss your situation and action you wish to take with a professional advisor to ensure that your time and effort will be well spent and achieve the outcome that you intend.

Wilson Gunn