Trevor Little

  • Alibaba unveils brand advisory board for Anti-Counterfeiting Alliance efforts
  • Seeks to direct spotlight onto wider environment as well as own platforms
  • Local counsel cite WeChat as posing significant brand protection challenge
     

This week, Alibaba’s Anti-Counterfeiting Alliance (AACA) announced the creation of a brand advisory board to facilitate greater collaboration between the ecommerce giant and AACA members on the protection of intellectual property rights. One brand protection leader for a major international company has welcomed the development, but hopes that “truly new” approaches to anti-counterfeiting are the result rather than extensions of current programmes.

We previously covered the launch of the AACA, which sees brands such as Louis Vuitton, Samsung, Swarovski and Mars working with Alibaba in a more formalised way. In July we reported on one outcome of this partnership, in the form of a successful civil suit against a vendor indicted for selling counterfeit cat food on Taobao (the suit being the culmination of a joint investigation between Alibaba and Mars). However, at the same time there were calls for more detail to be made available as to the range of specific activities being undertaken as part of the programme, with one commentator calling such actions “a drop in the bucket”.

In this week’s announcement of the advisory board, Alibaba provided some more information about these AACA activities. It states that – in the nine months since the alliance went live – it has worked with law enforcement on 28 “successful” offline enforcement campaigns. It expands: “Among those, over RMB 200 million worth of Louis Vuitton goods were confiscated in a series of criminal raid actions across three cities of China, while Chinese kitchenware brand Supor – with Alibaba’s help – tracked down an IP infringer that the company had been chasing unsuccessfully for three years.”

The latter brand is part of the advisory board, launched in Hangzhou on Tuesday, alongside such international powerhouses as Swarovski, adidas, Ford, Pernod Ricard and Sony. For now, just how this board, which will meet quarterly, will influence the “system-wide changes being implemented by Alibaba” is unclear, with the release containing little detail. However, one notable additional dimension appears to be a focus on wider policies and societal attitudes to counterfeiting. Supor legal director Zhao Guanqun – using language that closely echoes Alibaba executive chairman Jack Ma’s earlier rhetoric, in which he called on the Chinese government to crackdown on counterfeiters just as it had on drunk drivers in 2012  – proclaimed: “We will work with alliance members to call on society to fight counterfeits like drunk-driving and improve regulations so that counterfeiters will pay the price they deserve.”

Clearly Alibaba is keen to ensure that the focus is as much on the wider legislative framework and the counterfeiting environment in which it operates as it is on its own internal processes. In this way, it can position itself as tackling both supply and demand, and also direct some of the responsibility for the prevalence of counterfeits elsewhere. Alibaba’s chief platform governance officer Jessie Zheng reinforced this message, stating: “The alliance needs to stand at a higher level. Whether you’re from the platform or a rights holder, we all need to take on more social responsibility, to work hard in order to promote a healthier economy and society.”

Of course, to change society is a much bigger task than focusing efforts inwards. It will be interesting to see what tangible action follows these words (and, of course, if calls for stiffer penalties and campaigns to promote anti-counterfeiting sentiment work, this would only be positive). However, the quicker win is effective action on its own platforms and, for brand protection observers, these efforts are the central requirement. Curiously, though, in the same way that those outside the alliance are eagerly awaiting more detail on the precise outputs of the AACA, at least one member brand has voiced the same to World Trademark Review.

Wishing to remain anonymous, a senior trademark professional from an international company reflected: “They are really still at the stage of kicking off the alliance programme so we are also eager to see what type of processes are set up and what additional benefits they will bring to brand owners – in addition to what they are already doing. They have a lot of ongoing projects and we really want to find out if they are introducing projects that are similar to what they already do, or if they are offering something truly new”.

Additionally, while they told us that Alibaba is removing brand-infringing listings on their behalf – and if the statistics cited are to be believed, at an impressive level – there is still uncertainty about how this is practically approached: “We have asked them to share that data and allow us to know what they are doing, so we can understand better.”

The intimation is that detail and transparency are as important as headline statistics and pledges. However, what is clear when discussing Alibaba’s efforts is that those on the ground in China do have a more positive perspective than is conveyed when talking to counsel elsewhere. This may be because local teams are better placed to have regular interaction with the company. Whatever the reason, local brand representatives are more approving of Alibaba’s efforts than their counterparts in other jurisdictions, albeit they are keen to stress that much more can still be done.

One Shanghai-based brand practitioner told us this week: “If comparing Alibaba with other platforms, they are doing more. There is a better structure and more people available to support IP-related work. They are proactive in speaking to brands and for big brands they always allocate someone to speak to. The communication channel is quite close.” Interestingly, a number of local practitioners have observed IP professionals they know being directly employed by Alibaba, suggesting that the company is staffing up in this respect.

Meanwhile, for a number of those we spoke to, WeChat is regarded as posing a bigger brand protection headache than Alibaba, due to the inability to police what are effectively private messages and the way that infringers take a multi-site approach to illicit activity. We were told by a number of practitioners that counterfeiters are increasingly turning to WeChat, one observing that “infringement is more invisible and it is time consuming to investigate as you need to link different channels together to create a complete evidence chain. Often counterfeiters are connecting with buyers on WeChat by sharing links to product pages on photo-sharing sites and then doing transactions on other platforms [a trend we reported on last year]. We have been working with WeChat since they opened their doors to brand owners – so we do have a positive collaboration. But WeChat is more reactive than Alibaba – we have to file complaints that they then look into”.

Obtaining the evidence to base a complaint on is clearly no easy task. Another local practitioner concurred with the above, noting that WeChat itself is willing to positively engage with brand owners, but that the multi-platform nature of infringement is also key challenge for the messaging service (as well as the rights owners seeking to fight infringement) as they cannot police transactions that take place elsewhere.

Back to Alibaba, as noted teams on the ground in China do voice noticeably more positivity towards the company’s anti-counterfeiting efforts than their international counterparts, but there remains a desire for increased detail as to its precise activities and – crucially – insight into how these differ from existing offerings. Brands are clearly seeking new innovation rather than ‘more of the same’. The positive for the ecommerce giant, as well as other platforms, is that it will not be lacking in corporate partners eager to meaningfully combat the availability of fakes on its platforms. In terms of its core focus, that is a situation that Alibaba can have a more radical impact on, more quickly, than changing the wider legislative framework and societal attitudes to counterfeit goods.

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