Trade-mark infringement in the digital age : can an online marketplace be held liable for third-party infringement?

Abstract

In recent years, the fast-pace development of online marketplaces within the digital era has led to competition amongst sellers and owners of brands. The development of globalisation has resulted in various businesses across the globe to acquire a digital position in their trading operations by providing selling and purchasing services via the internet, resulting in the development of online marketplaces. The need to keep abreast of current online trends has resulted in numerous e-commerce businesses attempting to capitalise on the demand for highly-desired products, often of high-end brands, by replicating it and placing it on the market at a mitigated fee. Notwithstanding their affordability and readily availability, counterfeit goods often deceive the consumers into presuming that the product being sold is genuine. As a result, intellectual property rights have been casted under the limelight. The term ‘intellectual property’ is an umbrella concept which encompasses various aspects concerning intangible protections which are bestowed upon physical objects, intellectual ideas, and incorporeal creations. One such safeguard is trade-marks, which are particularly significant with regards to the selling of counterfeit goods, the focus of this dissertation. The increase of novel e-commerces being established has resulted in counterfeit goods being sold across multiple online intermediaries. In such case, it is worth pointing out that, despite both being digital mediums on which goods are sold, online marketplaces and online shops differ from each other. For the purposes of this dissertation, the stance of online marketplaces shall be considered. In the case where counterfeit goods have been sold on an online marketplace, the question arises as to who shall be deemed liable. Is the online marketplace who has provided an intermediary platform for the selling of goods liable? Or the third-party vendor who has employed such platform for their own ends?