Although the core business of social networks is not online commerce, they are potentially fertile ground for the proliferation of ads promoting counterfeit products; malicious actors often exploit the visibility these platforms offer to advertise their line of products that infringe duly registered intellectual property rights, making illicit profits and undermining the brand reputation of the rights holders.
With around 2.5 billion and 1 billion monthly active users respectively, Facebook and Instagram are attractive targets for these actors, who use a wide and ingenious variety of strategies to promote and sell their products while trying to evade monitoring and enforcement activities; through a photo, a video, a sponsored post or a "story", the counterfeiter gains visibility for their product, inviting the user to contact them privately or redirecting to a listing posted specifically on an external e-commerce platform. As a result, a single infringing image can channel a significant number of illicit transactions, causing substantial financial damage to the brand owner. Naturally, the marketplace sections of social networks are not immune to this scourge, and it is relatively easy to find listings similar to those typical of the main e-commerce platforms, especially when searching with alternative and/or generic keywords.
FACEBOOK'S ANTI-COUNTERFEITING TOOLS
Facebook has long been aware of the problem: since 2019 it has also been a party to a Memorandum of Understanding on combating counterfeiting promoted by the European Commission, together with numerous online platforms, associations and brand owners [1]. The platform's IP Department carries out monitoring and proactive enforcement against infringing content, through automated analysis of text and images. In addition, the Menlo Park giant works with companies in the fight against counterfeiting, providing them with several tools to report and request the removal of content that infringes their intellectual property rights.
REPORTING FORMS
First of all, both Facebook[2] and Instagram[3] offer a practical reporting form for infringing content. For complaints to be accepted by the platform, certain requirements must be met:
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First, you must identify yourself as the brand owner, or as an agent authorized to act in their name and on their behalf;
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Next, you provide the details of the intellectual property right you claim has been infringed (type of right (trade mark, design, etc.), registration number, issuing office, etc.);
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Finally, you list the links to the content you believe to be infringing (e.g. individual photos/videos/albums/stories, sponsored posts, marketplace listings, etc.), together with a brief description of the infringement found. You can also request the removal of the entire account/page/group responsible for the infringement, an action Facebook may decide to take, for example, in cases of repeat offenses or particular seriousness.
Usually, the platforms' IP departments are very quick to review reports and, if the alleged infringements are confirmed, remove the infringing content within 24-48 hours.
COMMERCE & ADS IP TOOL
Second, Facebook has recently begun rolling out an anti-counterfeiting partnership program with certain brand owners, the "Commerce & Ads IP Tool"[4], a system that allows affiliated parties to run in-depth searches (by text and by image), customizable through dedicated filters, as well as to use a dedicated reporting and removal platform.
Together, these tools allow a certain degree of effectiveness in suppressing counterfeiting; however, for them to be a lasting solution to the problem, they must be accompanied by constant monitoring and specialized analysis, aimed at countering counterfeiters' strategies and anticipating potential moves and countermoves in a rapidly and continuously evolving landscape.
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[1] "Industry-led initiative to fight counterfeiting gets new boost", European Commission, https://ec.europa.eu/growth/content/industry-led-initiative-fight-counterfeiting-gets-new-boost_en, 01/03/2019, last accessed 12 April 2020
[2] "Counterfeit reporting form", https://www.facebook.com/help/contact/counterfeitform, last accessed 12 April 2020
[3] "Counterfeit reporting form", https://help.instagram.com/contact/751729384978711, last accessed 12 April 2020
[4] "What tools does Facebook provide to help me enforce my intellectual property rights in advertisements and sale posts?" https://www.facebook.com/help/835772913244854, last accessed 12 April 2020