Parisian luxury accessories company Cartier is set to test the waters of international intellectual property (IP) enforcement, as it goes after counterfeit goods sold online.
While this all sounds fairly standard for a luxury brand with trademarks to protect, the focus of its litigation is not. Rather than the going after the end-sellers and the websites that host them, Cartier has asked a London court to force the Internet service providers in between to block the offending sites outright. If upheld, the brand’s actions could give the green light for other international names to pursue similar action, potentially flipping the burden of enforcement to the middlemen rather than the distributors.
Unsurprisingly that’s a big “if,” as there’s plenty of opposition to this approach, and not only from ISPs.
Free speech activists and civil rights groups will also have a part to play, as whenever there’s talk of shutting down a site, there follow the claims that reckless accusations will be made and legitimate services or speech shut down without “a fair trial.” On the other side of the argument, brands and other rightsholders point out that when their IP is being infringed upon, value is lost with each passing day and their infringement claims are based on a sound knowledge of who is licensed and who isn’t. All ISPs need do to avoid being placed in the spotlight themselves is comply with block orders promptly.
This approach to cutting off counterfeiting via its online middle men closely resembles a tactic being weighed by countries around the world to fight content piracy.
The so-called “number of strikes” legislation adopted by the likes of France and Great Britain calls on ISPs to warn customers about infringement that goes on through the connection they pay for, with a final threat of being cut off if the accessing of illegitimate content doesn’t stop. The same complaints are heard against this method of IP enforcement, calling the approach heavy-handed and denying the right to be online to everyone on that connection, in much the same way that blocking a site for hosting counterfeit goods would punish users doing nothing wrong, as well as those buying unlicensed products.
The path ahead is unlikely to be as clear as “block all sites upon any infringement,” but it’s obvious that something has to be done to empower rightsholders to control the way their intellectual property is used.
Bootlegging, piracy and counterfeiting are age-old concerns that have been given a whole new lease of life by being able to access consumers online. The problem has gone global and legislation now needs to rise to the occasion, not only by the countries in which the IP is owned but across international boundaries. There should be no safe haven for criminals intent on living off the creativity of others, and those who facilitate the connection to criminal activity must play some part, even if that doesn’t mean bearing the brunt of enforcement activities.