Trevor Little

  • Report finds that “counterfeiters see social media as a haven” to sell fakes
  • Facebook groups represented the most exposed location for suspect activity
  • Report deems own efforts to benchmark data as only “partially successful”

Research commissioned by the UK Intellectual Property Office (UKIPO) has reinforced claims made by government enforcement agencies that social media platforms “encourage IP infringement”, while also amplifying counterfeiters’ messages by increasing the connectivity of potential complicit consumers. However, there is a caveat: the office has noted that the study is only based on a 2015 snapshot and further investigation is needed to uncover the true scale and nature of infringement.

The main objectives of the study were to assess the role that social media plays in the sale and distribution of counterfeited and pirated physical goods. On this, it found that the available data backs up industry assertions that social media platforms offer counterfeiters an opportunity to market and sell goods, with infringement in closed groups “particularly flagrant”. It states: “Counterfeiters see social media as a haven and actively use both open and closed group pages, along with ‘likes’ and ‘retweets’, to disseminate their offerings. The social media platforms make it easy to move channels by establishing fan pages and making it possible to carry out transactions on or off the social media platform.”

While the report notes that recent changes to its business model suggest “there may be opportunities to improve IP awareness as the firm become more reliant on advertising from the brands whose goods are being infringed”, Facebook comes in for particular criticism. The study found that “Facebook groups represented the most exposed location for suspect communications, with suspect activity being much more prevalent in closed groups”, with 8.3% of communications within open Facebook groups – and 40.8% in closed groups - found to be suspect.

In the UK, as the report notes, Facebook is the default social networking site for almost all (96%) UK adults, so it is perhaps not surprising that if infringers are targeting social media users that would be “a favourite for counterfeit sellers”. For its part, Facebook does offer reporting mechanisms (in issue 68 of World Trademark Review, Facebook provided practical tips and insight into how to use its IP rights tools) and notes that it has to comply with different laws, with required individual notice and evidence procedures making bulk processing impossible.

It is also not helped by low reporting levels – in part due to the willingness of consumers to consciously buy fakes. The finding that illustrates the uphill battle study faced by brands was that that the bulk of infringing activity examined (88%) involved complicit consumers – individuals knowingly and willingly purchasing copied goods. The report observed: “Social media amplifies counterfeiters’ messages by increasing the connectivity of potential complicit consumers. Crucially, these connections do not have to be strong; as the threshold for connection on social media is low.” Drilling down, 24.5% of social grades AB (upper middle class and middle class) acknowledged complicit behaviour, which was significantly more than social grades C (skilled class) where 12.7% acknowledged ‘complicit’ behaviour.

However, the findings all come with a caveat. In terms of methodology, the study reviewed literature and industry data, tracked products to determine what proportion of links were directed towards infringing resources, conducted a 3,000-respondent online survey of consumers and interviewed Google, Twitter and Facebook. Reflecting on this approach, the UKIPO report acknowledges that its efforts to benchmark and compare data from the various government, industry and consumer sources “have only been partially successful”. Private enforcement agencies, for example, were unwilling to provide more information than is contained in available headline data – leading the office to call for increased industry cooperation in identifying and quantifying market trends. The methodology was also geared towards capturing complicit behaviour, rather than deceived behaviour, so the actual ratio of ‘deliberate/deceived’ purchasing may skew much more towards the latter in reality.

The report therefore concludes: “Even though some interesting conclusions have been presented, and the consumer data has shown how social media plays a role in facilitating IPR infringement, particularly in closed groups, the data represents a mere snapshot from the middle of 2015. The lack of any other comparable data means these cannot be used to provide a definitive indication of the development of this phenomenon over time and further work is needed to build upon the work completed in this study.”

The difficulty in quantifying the scale of infringement and how counterfeiters are getting their products into the hands of consumers is not a new problem. For their part, the social media sites will likely treat a critical report that – by its own admission – is based on a “partially successful” methodology with a degree of scepticism. For brand owners, the study includes further insights on an issue that is increasingly difficult to tackle. Not least, the reminder that in many instances the purchasers of counterfeits are doing so from a position of knowledge, rather than being unwilling victims.

Anti-counterfeiting strategies and managing reputation on social media are both the subjects of in-depth discussion at this year’s Managing Trademark Assets, held in Chicago on October 17. For more information, including details on how to save $100 on the standard delegate rate, visit the event website here.


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