As a European based manufacturing company who source from China, we have discovered that our products, both genuine and counterfeit, are sold over the internet without our permission. Does this constitute an IPR infringement? What actions are available to us?
With regards to the genuine goods sold online, provided that the products are protected by a copyright, displaying the products on the internet for sale should be considered as an infringement of the copyright. Indeed, posting and storing online a copyrighted product without the authorization of the copyright owner is illegal. In the event that the products are not considered copyrighted, it would not constitute intellectual property violation.
If the author created a work in a country that is signatory of the Berne Convention, no registration is necessary to have a copyright on the work and in practice it is thus difficult to know if a product is copyrighted or not. The copyright registration database in China can provide some tangible elements but the absence of a work in the data base does not imply that a work is not protected.
The sale of counterfeit goods which are protected by copyright is an infringement of intellectual property rights. It could also be considered an act of unfair competition as it conspires to confuse online customers.
The legal actions available include:
- sending a notice to the owner of the website and to the Internet Content Provider to request the removal of the genuine and counterfeit products as the copyright owner did not authorize their online sale
- bringing a legal action before the judicial court both grounded on the infringement of the moral rights (in the absence of the name of the copyright owner on the site) and the economic rights (due to the unauthorized sales of the products online and the sales of counterfeited goods). Compensation can also be requested.