A press release from IP mega-practice Marks & Clerk, headed "Recession 2.0? -- Business fears counterfeiting is set to spiral in first 'digital recession'", paints an interesting picture of a scenario which calls for attention. The press release reads, in relevant part:
"Businesses call for stricter internet controls and a better cybercrime authority to combat counterfeiting on the web –
• 80 per cent of business people believe they are at much greater risk of counterfeiting than in previous recessions, due to the rise of the internet;
• 75 per cent believe stronger protection is needed to protect companies from counterfeiters in online marketplaces;
• 61 per cent call for a tough cybercrime authority to punish offenders;
• 59 per cent wish to see a protocol created to tackle search engines’ role in helping counterfeiting prosper.
Businesses are concerned that counterfeiting will increase as a result of the recession, and want to see much stronger controls put in place to protect them from internet abuses, according to new research by Marks & Clerk, the leading intellectual property firm. In a survey of over 200 businesses* ["The Marks & Clerk online survey, of 216 businesses in the UK, was conducted in March-April 2009, with an emphasis on mid-ranking to senior business people. Almost half of respondents were managerial level or above, with the remainder coming from Operations, Legal, Technical & Research, or Marketing functions" -- but how were the businesses chosen? From which commercial and industrial sectors were they drawn? How many were in-house lawyers? Were the respondents giving the official position of their businesses?], 97 per cent believe that counterfeiting will increase in the recession, while 80 per cent believe businesses will be at “much greater risk” than in previous downturns due to the phenomenal growth of the internet. In the last recession in 1990-92, the internet was still very much in its infancy.
75 per cent of respondents argue that stronger action is now required to protect companies from counterfeiters. A clear majority of 61 per cent argue that the solution lies in the creation of a more powerful cybercrime authority, with stiffer penalties being imposed directly on infringers [was this suggestion spontaneous, or were respondents led to it?]. 55 per cent go so far as to suggest that stronger penalties should also be levied against the online marketplaces themselves, such as eBay, in enabling counterfeiting to prosper [ditto]. Over three quarters (76 per cent) feel that the law has failed to keep up with the challenges posed by the rise of the internet, in protecting business’ intellectual property ....
The survey finds that businesses’ concerns extend more broadly to the role that search engines play in enabling access to counterfeit goods. 59 per cent believe that a protocol needs to be created to engage search engines in the fight against counterfeiters. This is notable in view of the long-running dispute between Google and Louis Vuitton’s owner, LVMH. LVMH objects to the service provider selling keywords to the highest bidder, including rivals or potentially counterfeiters [this links the notions of 'access to counterfeit goods' and 'protocol to engage search engines' with 'control of the sale of keywords'. Was this the view of those surveyed? There is evidence to suggest that keywords are purchased by legitimate businesses and we all await a ruling from the ECJ as to whether, and in what circumstances, the purchase of keywords constitutes a trade mark infringement].
... Amongst other findings is the fact that businesses are also concerned about the threat of legitimate competition on the web, particularly when it relates to misinformation from competitors. 58 per cent object to the practice of competitors paying for sponsored keywords in their name, and argue that this too should constitute trade mark infringement [this subtly links the concept of misinformation with the purchase of sponsored keywords].I deprecate counterfeiting and trade mark infringement in every form it takes and, as a consumer of branded goods, look forward to the resolution of all the issues raised in this press release in a sensible and equitable manner that will protect my interests as well as those of the brands I buy. I am however very uncomfortable at receiving press releases that, however genuine they may be in their methodology and sincere in their commitment to reflecting genuine opinions within the business community, give the impression of seeking to influence opinion rather than reflect it.
Yet tellingly, the survey suggests that businesses are reluctant to take on the mantle of protecting their brands in the online marketplace themselves [this suggests that the word "businesses" is synonymous with "product brand-owners". Are retailers, online traders and service suppliers also "businesses" for the purpose of this survey?]. Only 25 per cent think that the burden should fall on businesses to police their brand more effectively [what proportion of these businesses feel the same about policing of traditional markets? It might be good to know], although 39 per cent recognise that they could nonetheless allocate more of their own resources to the problem ...".