Google’s refusal to act is putting consumers at risk; as an example, products such as counterfeit brake pads, fake antibiotics, and imitation baby teethers can all lead to potentially deadly consequences when used. Significant harm is also dealt to the companies targeted, who invest time and significant financial resource to create and market their brands.
Currently, Google will not de-index a specific page or website that offers counterfeits.
Recent research on search engine responsibility reveals that up to 60% of results returned offer consumers access to counterfeit and possibly dangerous goods.
In pharmaceuticals, six in 10 of Google’s first-page results following searches for the antibiotic Bactrim were for sites very likely to be operating unlawfully;
In the children’s products category, a third of search results for a “Comotomo teether” featured potentially harmful products that misuse the Comotomo trademark;
In the white goods sector, a search for refrigerator filters repeatedly directed consumers towards a website selling counterfeit goods.
These sites, often dedicated to selling knock off products, don’t just infringe IP but are also potentially deadly – fake pharmaceuticals, car airbags, and fake cycle helmets are all widely available and put consumers at extreme risk.
The scale of this issue is enormous.
In this newly released White Paper, the findings demonstrate that in one month alone and for a single sample product in certain categories of consumer products, there were over 1,000 websites indexed by Google that sell infringing products to consumers.
If Google did remove these websites from their index these sites would be starved of oxygen and would fail, and there are case studies that prove so. The people who operate infringing websites don’t typically pay for advertising. Instead, they often rely on organic search, knowing that they will be found when consumers use search engines to look for brands or products.
Google’s at odds with its own practices
Google’s refusal is out of step with its own practices when dealing with other types of intellectual property:
Google will remove a URL from its search index when it is told that the page infringes copyright. Google removes millions of URLs on this basis.
However, Google won’t act when it is told that a URL is selling counterfeits – where trademark rights are infringed.
This inconsistent approach stems from a difference in treatment for copyright and trademarks in the US.
Google acts against copyright infringement because it is legally required to do so under US law; the Digital Millennium Copyright Act (DMCA) requires Google to remove copyright infringing pages from its index when notified.
There is no similar legislation in the US that requires tech platforms to act on trademark infringement and so Google does nothing.
Other tech platforms, however, do act when they are told about the sale of counterfeit products on their platforms because they fear that they will be held to be “publishers” if they do nothing.
Google takes the view that it cannot be a “publisher” and only takes the minimum action required to remain legally compliant.
Other platform responses highlight a stark contrast
Incopro’s technology searches across the internet for intellectual property infringement. Working on behalf of over 600 brands, we detect millions of instances of infringement taking place online every day.
When Incopro notifies big tech companies such as Facebook or eBay of counterfeits being sold through these sites, they will act by removing the offer for sale from their platform.
In stark contrast, however, when Incopro asks Google to take these infringements out of their index, the tech giant routinely turns down these requests.
The resulting enforcement gap creates enormous difficulty for brand owners looking to protect their rights and presents a real risk to their revenues. This gap is particularly apparent when websites or even entire networks dedicated to counterfeiting are identified.
Google can and should be challenged
From a moral and cultural perspective, there is a compelling case that Google should do more when it knows that it’s displaying search results for counterfeits – products such as
fake anti-malarials will put consumer’s health at serious risk, for example.
But there is also a growing legal case.
First, there is now a clear and developed line of legal authority that empowers the courts to require Google to act. The legal cases on this have been developed in several key jurisdictions and they are examined in detail by the law firms who have contributed opinions for this White Paper.
Google should cooperate with trademark owners and develop a streamlined and scaled approach to support court orders that enable Google to act with the protection of the courts. Instead, Google takes a combative stance, insisting on fighting any attempt to require it to do anything in this area.
Second, if Google continues to refuse to cooperate then it may be found to be liable for refusing to act when it is told about infringements that it indexes.
What can brands do?
So what are brands to do? Google’s position is that brands must obtain a court order against the sites themselves. Only then will they act. The reason being that the site must be declared illegal before they will move.
But if the same infringing site is featured in a Facebook or Instagram promotion, these platforms will respond and remove without requiring a court order. If it’s clear to other large tech platforms that there is clear infringement of trademark taking place, why is the same evidence regarded by Google as inadequate?
Google and other search engines are at the center of this. They should provide a scalable means to tackle this vast problem, or case law may come calling.
It’s time for Google to change its approach
Incopro is calling for search engines to work more closely with rights owners and their representatives to remove counterfeiters from the results they present to consumers.
This White Paper aims to provoke discussion amongst lawmakers, brands, platforms and other interested parties about how to establish a framework under which search engines take on a greater role in tackling consumer harm online. Click through the link below to read the full research, findings, and recommendations.