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Building respect for IP online : the French preventive tools against infringements and counterfeiting

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Building respect for IP online : the French preventive tools against infringements and counterfeiting

    This is the success story of a government which managed to durably decrease counterfeiting on online platforms by facilitating the adoption of equitable trade standards for protecting intellectual property rights online. The solutions described in the following paragraphs are royalty free and available for any business wishing to improve customer protection, to develop a safer and more reliable digital environment, to promote a more balanced cooperation between trademarks owners and internet companies and to build greater respect for IP on the internet ultimately…

    A necessary response to a serious issue for consumers and businesses alike

    In 2008, the French government made the fight against online counterfeiting the top priority of its national intellectual property policy agenda. The situation was critical at that time: the dramatic increase of online sales of fake triggered waves of complaints from aggrieved consumers and litigation cases between brand owners and e-commerce platforms, damaging the public image of e-commerce.
    The key issues at stake were twofold: how could we stop online sales of counterfeit products without harming the booming business of e-commerce and which reasonable concrete measures could be most successful to do so. The French government initiated a dialogue between e-commerce platforms and IPR holders. After 9 months of consultations and negotiations led by the President of the National Anti-Counterfeiting Committee (CNAC), with the support of the French Industrial Property Office (INPI), an agreement in the form of a charter was found between the major e-commerce platforms and over 500 French and international brands. This charter provided a set of preventive measures and reactive procedures, to be implemented through a continuous and harmonious cooperation between the parties.
    Filtering as the key for efficient detection

    First, technical detection tools (filters) based on information provided by IPR holders were set up by e-commerce platforms. These tools include key words showing the counterfeit nature of the products offered for sale, identity verifications, identification of dubious offers, analysis of sellers’ profiles and behaviours and detection of repeat offenders.
    The charter also provides reactive measures in order to take action against counterfeiters. Rights holders can use a simplified notice and takedown procedure. Sanctions against sellers of counterfeit goods can include a 6-month suspension or closure of their accounts, plus measures to prevent re-registration. Sellers must also prove the authenticity of the products or the authorisation of the IP rights holders.
    In the following 18 months, the parties implemented anti-counterfeiting mechanisms and exchanged information for further improvement. The first results were very encouraging.
    Immediate and inspiring results

    The volume of online fake products significantly decreased or simply disappeared, and so did the number of claims.
    A direct and solid dialogue is now established between government and stakeholders, with a proven capacity to constantly adapt the tools at hand. An annual assessment of this mechanism regularly highlights the positive impact of these solutions. This soft law providing efficient preventive tools has become a standard in France. Abroad, the French ‘’Charter of confidence’’ is also widely promoted as an example of good practice. It inspired a similar initiative adopted at the European Union level in 2011. In 2012, IPR owners signed two additional agreements in France with free little ads platforms and postal operators.
    In France and in Europe, the challenge is now to widen the scope of this type of cooperation by including other intermediaries such as advertising service providers, payment services and shippers.
    Paving the road for better IPR enforcement online in China

    It is crucial to tackle the problem before it becomes too big. The Chinese central government is currently encouraging local police and administrative enforcement authorities to become more active in monitoring and investigating online counterfeiting.
    A positive orientation was recently adopted with the State Council Opinion on Strengthening Governance of Internet – Infringements and Counterfeiting on the Internet.
    Moreover Jingdong Mall (JD.com) recently declared that respecting IPR and fighting against counterfeiting on its C2C platform has become too difficult. As a result, Paipai.com will close on April 2016.
    Since 2014, France’s action includes regular messages to establish a dialogue at every level of Chinese Government, administrations and major internet companies. In June 2015, a delegation of experts from France, headed by Senator Richard YUNG, President of the National Anti-Counterfeiting Committee (CNAC), came to Beijing to share experience with the relevant administrations.
    Pragmatic result oriented dialogues to experiment preventive solutions

    French authorities facilitate several concrete dialogues between French enterprises, supported by Industry Association Unifab, and major internet Chinese e-commerce platforms, social media and search engines. They provide them with assistance for the implementation of filters and the improvement of notice and takedown procedures designed to tackle obvious and recurring fake offers and infringers systematically. Our approach is “NO MoU, FIRST WE DO !” Detecting obvious and recurring fakes is technically possible and useful for both sides. Meanwhile, a high profile media litigation case in the US has been engaged by the French group Kering (Gucci, Saint Laurent, Balenciaga, Bottega Veneta) after one year of unfruitful negotiations with Alibaba.
    During last meeting with Alibaba (Chairman, CEO, Secretary general, Vice-President International Government Affairs, IPR and Security team), the French Industry Association (Unifab) concluded that almost 80% of the reported ads could have been automatically detected with our suggested filters and therefore not posted on Taobao. We agreed to work on a very pragmatic way on each problem to find appropriate solutions. Top priority efficient preventive filters consist in analyzing offers contents (prior to publication online) as well as seller’s profiles and behaviours:
    -          Keywords in association with trademark, brand name or geographical indication
    -          Categories of products: goods not manufactured by the brands shall preventively not be allowed and offered online
    -          Pictures: block the use of copyrighted pictures or blurred photo or blurred logo
    -          Prices (offers of products at an unrealistically low price –depending on each brand) shall not be approved
    -          Quantities (ads shall not be approved above a certain number of items)
    -          Checking seller’s information with various criteria
    -          Analysis of sellers’ profiles and behaviours and detection of repeat offenders.
    A business issue based on mutual trust

    The ultimate objective of our dialogues is to build a better business environment, both for French enterprises and internet companies. We are committed to creating financial and reputational value by eliminating a harmful problem both for platforms and IPR owners, but first and foremost for the final consumers. Indeed we are not only talking about luxury products but also about cosmetics, electrical and electronic products, decoration materials, children’s products as well as clothing and shoes, food and drugs which means public health and security, with the consequences that we could imagine.
    Trust is global, trust is a whole. Trust can only be built through win-win cooperation and implementation of sustainable and efficient solutions.
    We are not here to discuss legal issues or to elaborate on what could be the responsibility of each party. We are here to pragmatically experiment fair trade business standards which have already demonstrated good results elsewhere, in France and Europe. So, the French authorities and stakeholders are sharing this experience of the implementation of reasonable, good-balanced, proportionate solutions thanks to information exchange. French companies are providing their assistance to build a mutual trust aiming at experimenting preventive and proactive mechanisms to tackle more automatically obvious and recurring fake offers and infringers.
    In China as well, preventive solutions could soon become the new standard for another successful experience. But to achieve this goal, more international brands should integrate a similar approach and comparable requirements in their dialogue with internet companies. Only by working all together we can ensure IPR are better respected online.

    Jean-Baptiste BARBIER, IP Counsellor at the French Embassy in Beijing and Representative of the French IP Office (INPI) in China
    David SAUSSINAN, Legal and Public Affairs Manager – Union des Fabricants (UNIFAB)
    Yann ROME, Senior Counsel, Internet anti-counterfeit – CHANEL
    Stanislas BARRO, Director of Intellectual Property, Asia Pacific – KERING
    Zeeger VINK, Intellectual Property Director – LACOSTE
    Marilyne SERAFIN, Head of IP Department – LONGCHAMP
    Jessica MATOUA, Internet Brand Protection Manager – LVMH Holding
    Mathieu PROT, Group Intellectual Property Director – PERNOD RICARD
    Géraldine GUERY-JACQUES, Vice-President IP & Isabelle DOYON, IP Counsel – Groupe SEB
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