How does social media enable online infringement?


Since the early days of the Internet, online infringement of intellectual property (IP) has been a major problem for organizations around the world. Online file-sharing services have infamously facilitated the theft of billions of dollars from the entertainment industry via piracy. But even seemingly innocuous social media platforms like Instagram now play a significant role in marketing fakes and knockoffs on a worldwide basis.

Instagram a leading contributor to the “explosion” of counterfeiting

As the Internet has grown from a few thousand web pages to billions of sites, listings of fake products have become more sophisticated – and in many cases, completely automated. Manipulation of search-engine rankings is a critical component of online infringement, directing customers away from legitimate IP owners and towards unregulated e-commerce sites selling infringing merchandise. Many of these websites operate outside the United States – typically in China, Russia, and southeast Asia – and can be impossible to trace back to the actual owners.

The problem is that it is all-too-easy for an online infringer to setup a website or create an Internet presence anonymously. Counterfeiters often purchase domain names that are strikingly similar to that of the IP holder. Sometimes all it takes is changing one or two letters, or using the IP holder’s name as a subdomain of the counterfeiter’s domain.

But just setting up a fake website is often not enough to attract customers. Counterfeiters need to market their goods, and the cheapest and easiest place to do that is social media. In May 2016, the Washington Post published a major exposé on how Instagram, the popular photo-sharing platform owned by social media giant Facebook, has contributed “to the explosion of the Internet’s counterfeit economy.”

The Post’s research team looked at over 150,000 Instagram posts “tagged” with popular corporate brand names and discovered that about 20 percent of those posts “featured fake merchandise from accounts” based overseas. These counterfeit accounts attracted in excess of 700,000 followers over a period of just three days, according to the researchers. By clicking on the Instagram posts, customers could then contact the counterfeiters using untraceable instant messaging applications like WhatsApp (another Facebook property) and arrange for payment using third-party services like PayPal.

This is not to suggest that Facebook, Instagram, and other social media firms condone counterfeiting. To the contrary, they have made significant efforts to shut down accounts that engage in IP infringement. The problem is that counterfeiters are a technologically sophisticated lot and always manage to stay one step ahead. As the Post noted, there has been a “proliferation of spambots, which automate account creation and postings to saturate Instagram with their images.”

You need a comprehensive strategy to fight online infringement

So what can you do as an IP holder to protect yourself from online infringement? The most important thing is to be proactive. Intellectual property cannot defend itself, especially in the face of automated computer algorithms capable of promoting millions of counterfeit products every second of the day. Companies need a comprehensive strategy to detect infringement and eliminate it from the marketplace as fast as possible.

At the most basic level, you need to have an integrated program in place to produce strong takedown requests and cease-and-desist letters. Legitimate online service providers are always willing to work with companies in defending their IP. But even top providers like Facebook cannot identify infringing content with 100 percent accuracy. That is why you need to take responsibility for locating infringement and bringing it to the online provider’s attention for a takedown in a prompt and firm manner.

It is also not enough to go after individual posts or spambot accounts. You need to make sure that the platforms eliminate counterfeit results from their own search engines and indexes so consumers will not find them in the first place. And, it often helps to prioritize your own search engine optimization (SEO) to fill in gaps with your product content in a way that counterfeiters will struggle to rise above the first three pages of any search ever again. You need to block infringers from being seen as much as possible. Remember, infringement is not a victimless crime. It harms not only the value of your intellectual property portfolio, but also your organization’s reputation.

If you need help developing an effective anti-counterfeiting strategy or removing counterfeit listings from high-traffic websites and marketplaces, contact Perception Partners today. Our experienced professionals work brand protection leaders, web platforms and law enforcement to protect and leverage global trademark, copyright, patent and design portfolios. Whether you need help defending your existing properties or developing new ones, we can help.