In Search of Counterfeiters: Gucci Partners with Facebook for Anti-Counterfeiting Efforts
Hi, everyone! Sorry for not being active lately. I was swamped with assignments, writing three long papers. One of the papers I wrote was about how to fight against counterfeiters, especially in light of today's digital landscape. There is an interesting interplay between social media platforms and online retailers. To put it more vividly, as I discussed in an earlier post, tech-savvy counterfeiters are increasingly betting on social media platforms, most notably Instagram, to sell fake luxury products while avoiding detection. In one case, in an attempt to evade Amazon's sophisticated counterfeit detection tools, counterfeiters resorted to fleeting Instagram Stories to leave no trace behind. The Stories featured fake luxury products with the accompanying Swipe Up links that redirected the viewers to Amazon pages for payment. The Amazon pages displayed innocent-looking, non-infringing products. It is in this context that the collaboration between social media platforms and online retailers matters. One cannot perfectly cleanse itself of counterfeiters without the help of the other.
Teaming up with Facebook, Gucci recently initiated a trademark infringement lawsuit against a Russian citizen who has been engaging in "an online counterfeiting business that sells fake Gucci products." In the complaint filed with the United States District Court for the Northern District of California, the duo alleges that the counterfeiter persisted in her flagrant counterfeiting activities, even in the face of Facebook's continuous enforcement, which included measures such as "disenabl[ing] Defendant's accounts and remov[ing] posts for promoting the sale of counterfeit goods." The complaint highlights that both Facebook and Instagram (which is owned by Facebook) have Terms of Service that explicitly prohibits users from doing anything that "infringes or violates someone else's intellectual property rights." In addition, Facebook and Instagram implement "a global notice-and-takedown program" with a keen eye to repeat infringers. Gucci equally emphasizes that the brand operates a comprehensive monitoring program to ferret out counterfeit products circulating in the market so as to "protect[] and safeguard[] its intellectual property rights and assets." The goal of the anti-counterfeiting program is to "ensure that Gucci's unique and valuable creativity and heritage is preserved, safeguarded, and enforced." The complaint specifically points out that the infringer produced new monikers each time the account was disabled, using an automation software that helped avoid detection. Based on this record, Gucci asserted counterfeiting and trademark infringement based on the Lanham Act. See 15 U.S.C. §1114(1). Facebook claimed a breach of contract for the violation of its Terms of Service.
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| Source: The Gucci/Facebook complaint |
I predict that this type of joint lawsuits will be more common. In fact, last year, Valentino partnered with Amazon in a counterfeiting lawsuit against a Chinese counterfeiter. Having said that, I have one recommendation. Why aren't users allowed to report infringing activities that they come across online while browsing social media platforms? Right holders have limited resources at their disposal. For instance, if an infringing act involves the use of Instagram Stories, which are only displayed for 24 hours, it would be doubly hard for brands to detect and manually report them. The worry is that users might abuse such reporting feature, but social media platforms can institute necessary measures to penalize abusers. If reporting directly to social media platforms (which asks suspicious users to fill out the form) is too much of a hassle, at least users should be allowed to report instances of infringement to brands themselves so that they remain alert to what's happening unbeknownst to them. Tackling counterfeiting isn't an easy task, and that's why I think it requires all stakeholders (brands-platforms-consumers/users) to provide certain inputs. Now's the time to make this collaboration triangular.
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