Amazon, Counterfeits And Memes: Online IP Developments

Author:Ms Delene Bertasso

Amazon is apparently the world's most valuable brand, and is one that plays an increasingly important role in our lives. Although most of us know it as an online retailer, a recent BBC documentary describes it as being every bit as much a data-company, one that knows more about us than we know ourselves.

We've reported on how Amazon is under considerable pressure to deal with the fact that counterfeit goods can be and are sold on its online platform. Previously, Amazon sought to deal with the issue of counterfeiting with the introduction of its Project Zero, described as a "self-service takedown tool" for brand owners. Project Zero encompasses brand owners providing Amazon with their logo and trade mark data, the brand owner removing counterfeit listings, and a "product serialisation service", where brand owners create unique codes for every product that they manufacture, therefore enabling Amazon to scan and confirm the authenticity of any product acquired via their online platform.

Today, there is such an increase in retail online that the issue of counterfeit goods available on Amazon remains a concern. In Europe, the Advocate General recently handed down an opinion in the matter of Coty Germany v Amazon. The background to the case is that the brand owner bought a fake Davidoff perfume as a test purchase. In the court case that followed, the brand owner lost because it could not prove that Amazon was aware of the infringement.

The matter was, however, referred to the Court of Justice of the European Union ("CJEU"). The Advocate General usually provides an opinion before the court considers the matter, and this opinion is generally followed by the court. In his opinion, the Advocate General said that Amazon "can be expected to show particular care in terms of control of the lawfulness of the goods they trade." In essence, Amazon "cannot simply discharge their responsibility by attributing it exclusively to the seller, precisely because they are aware that, without this control, they can easily serve as a channel for the sale of illegal, counterfeit goods, pirated, stolen, or unlawful or unethical in any other way, infringing the property rights of third parties."

This suggests that, under...

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