New EU-Industry Agreement Against Counterfeits

The European Commission recently heralded the signing of a memorandum of understanding aimed at boosting collaboration between rights holders and internet platforms in the fight against counterfeit products sold online.

The agreement, which is non-binding and establishes a series of principles for all sides to follow, was signed on 4 May, and is available here [pdf].

Key to the agreement is that internet platforms stopped short of committing to a general obligation to monitor information about online counterfeit activity, and both sides are governed by a principle of what is “commercially reasonable.”

But the agreement increases and formalises the sharing of information on internet users, including sharing of key words related to active counterfeiting occurring online, and information about “repeat infringers”, which can be assessed by rights holders for possible legal action. The latter appears to echo the “three-strikes” policy on the rise in Europe, in which consumers who are alleged to be found infringing three times can have their entire internet access cut off.

The European Commission considers sales of counterfeit products on the internet to be a risk for consumers.

The agreement does not appear to contain any measures for the protection of consumers’ private information, nor redress for wrongful accusations of infringement. There are no representatives of consumers among the MOU signers, only industry.

The agreement is intended to create a “code of practice” for all sides, and boost collaboration on and beyond “notice and takedown” procedures, in which internet platforms are to takedown offending websites or content upon notice from rights holders.

It is also noted in this “Memorandum of Understanding on the sale of Counterfeit Goods over the Internet” that it is not related to sharing of unauthorised copyright-protected works on the internet and is not targeted at online piracy. Counterfeit products are generally viewed as those misappropriating registered trademarks.

A review of the understanding will take place in one year.