Example: Online Anti-Counterfeiting in Practice
This was a real case back in 2012. But it did not become a real case of IP enforcement.
So much time has passed since then. I can now safely present this case as a good example of the steps of fighting counterfeit on the Internet.
Buying a Counterfeit Jacket Online
After someone tipped me off in Singapore, I have bought a Mercedes-Benz AMG Team jacket on www.clickme24.com. It was EUR 55.99 at that time. You can still buy it there today, for EUR 59.90. Everything becomes more expensive over time and – apparently – so do counterfeit products.
This is the online order confirmation:
I have blackened the names, coordinates and bank account details of the counterfeiters because I do not want to create heat here. This article is about the inherent futility of anti-counterfeiting and not about the individuals who make counterfeit products.
The Counterfeit Parcel Arrives
A week later, a brown envelope with my Mercedes-Benz Team jacket arrived. I do not know whether it was counterfeit but I assume so. I did not expect to receive a genuine Mercedes-Benz Team jacket for that price. The envelope also came with a handwritten receipt.
The envelope had a stamp from Thailand, and it was sent with registered mail.
The customs declaration was filled out in the German language which I found surprising. It says that the content of the parcel is clothing and that it was meant to be a “gift”. The price THB 599 on the purchase receipt was at the time equivalent to about EUR 18.00, as mentioned as a value on the customs declaration.
The Investigation Starts in Bangkok
I always check out the actual sender address of any counterfeit good. In many cases, this helps to solve the matter.
In the present case, this was convenient for me. On the way back from our Munich office to our Singapore office, I did a stop-over in Bangkok. Thai Airways has a very nice direct flight from Munich to Bangkok, and there are about 20 or more flights per day from Bangkok to Singapore.
Upon arrival in Bangkok I went to the address 120/63 Indra Market, Pratunam/Bangkok, that is stated on the purchase receipt. The following Google street view shows that building:
There is no unit 120/63 in this building. There are many other shops in the same building that sell cheap counterfeit clothing, but there is no “Discove” shop as mentioned on the receipt in the parcel, and there are no Mercedes-Benz jackets for sale.
That Bangkok lead was quite exotic but not successful.
Background Check On A Website
Another lead is the location of the clickme24.com webserver.
This starts with finding the IP address of the clickme24.com webserver. In order to do so, open the Command Prompt window on your computer. In the Command Prompt window type the command “tracert www.clickme24.com”.
And this is the result of the tracert search:
I have greened out a few details about my own network for security purposes.
The most important result is that the IP address of the clickme24.com webserver is 184.108.40.206.
In the next step, copy/paste that IP address into search bar of the IP Location Finder – Geolocation site https://www.iplocation.net/
This is what you get as a result:
Three different services say that the clickme24.com web server sits in Roubaix. This is a city in northern France, located in the Lille metropolitan area on the Belgian border.
This information must be taken with a pinch of salt.
Actually, the physical web server of clickme24.com could be located anywhere inside a company’s network, and the IP address 220.127.116.11 could be pointing to a front end device such as a firewall or a load balancer which redirects the traffic to a web server that has a different IP address.
In other words, there is not necessarily a correlation between the TraceRt IP address and the physical location of a webserver. But in 99% of the cases the front end and the back end of a web server reside in the same data center, so by knowing the IP of the front end one can tell the physical location of the back end.
In order to get more security, I run the IP geo location tool for the last few hops IPs in the TraceRt result. By doing so, I could now find out who is hosting the physical web server of clickme24.com, it could be an ISP or the person that also runs the clickme24.com website, but I stop here because ISPs often hide behind data protection regulations. Chances are low that the ISP will reveal anything relevant to our trademark infringement.
The next step is to check out the Whois entry of the Internet domain clickme24.com. This is often less relevant because the Whois entry only names owner of the domain name, and it can be directed at any IP address on the Internet. Another difficulty is that one can register domains through third-party services, and web servers can potentially just pass requests on to different servers if someone really wanted to hide the location of the web server. Chances are low that the Whois data will reveal anything relevant for our trademark infringement.
I use the scamadviser.com website (https://www.scamadviser.com/check-website/clickme24.com) for a quick overview. It comes with a Whois entry.
Here is the Whois data
Scamadviser.com says that the domain name clickme24.com at some time in the past belonged to a company named COMENDOHOSTING APS.
A number of websites that are related to Thailand are said to be hosted on the same web server as clickme24, such as siamproperties.net, pattayacondorent.com, bkkcondos.com, siamgreatadventures.com, thecavepattaya.com, and pattayaflower.com.
Remember that the Mercedes-Benz jacket has been shipped from Thailand? It is very unusual that so many Thai websites are hosted on the same web server as clickme24.com, and this webserver is located in France. That would constitute more leads.
But this is where I stopped investigating the clickme24.com case. This case is definitely not a juicy opportunity. Here is why.
Non-Existent Web Traffic
It does not make sense to engage into privately enforcing trademarks against the clickme24.com webpage because this is only a small website. For Alexa.com it does not even exist, check out this link https://www.alexa.com/siteinfo/clickme24.com
The audience on the Internet is not very enthusiastic, check out the comments at this link https://www.motor-talk.de/forum/angenehmes-zubehoer-t2915859.html
I would not buy anything from this Clickme24.com site. They do not even have an imprint, depending on where they are based, it will be difficult to tackle the goods if they are not received. May be that they are serious and send every order. But it can also happen that the customs intercept the goods and then you get nothing.
This does not sound like a trustworthy source of goods. I wonder why people buy from there.
International Enforcement Required
This is also not an easy case when it comes to enforcement. At least four different jurisdictions are involved:
- the order was made on website on a webserver in France,
- the webserver is owned by a company in Denmark,
- the purchase price was sent to a German bank account,
- the shipment of the counterfeit jacket was arranged from Thailand, and
- the shipment was made to Germany.
It would be too expensive to hire four lawyers in four countries, my good guess is that this could cost EUR 40,000.00, maybe even more. Enforcement in Thailand is very expensive, you can easily spend EUR 20,000.00 in Thailand alone.
Customs are Toothless
The EU does not know world-wide exhaustion of trademark rights, so any commercial shipment of the counterfeit jacket from outside the EU into Germany constitutes trademark infringement. This includes a shipment of a trademarked jacket that a private person has ordered from an online shop that is outside of the EU. But this does not include a shipment of a personal gift by one private person in Thailand to another private person in Germany, such as the Mercedes-Benz AMG Team jacket.
Remember that the sender ticked the “gift” box on the customs declaration? Chances are high that the German customs will wave the jacket through.
And this is what the clickme24.com website says about this topic:
Every consignment from outside of your country is cleared by customs, but customs is only able to carry out random checks. In our experience, the controls are therefore less than 1%. Depending on the country of the recipient, as well as the type and value of the shipment, customs / VAT or processing fees may apply, which can vary considerably from country to country. However, all countries have in common that there are duty-free allowances, so that small shipments are exempt from customs clearance in many cases.
If a shipment has to be picked up by customs (which does not mean that costs are incurred), this is no reason to want to withdraw from the purchase contract. The buyer is responsible for the customs declaration and any fees that may apply.
The clickme24.com have obviously done their due diligence.
Not A Case For Interpol & Europol
I remember that I tried to engage Interpol and Europol into this case. Both organizations were not interested in the clickme24.com website, despite having a program for that purpose:
Joint investigations by Europol’s Intellectual Property Crime Coordinated Coalition (IPC³), the US National Intellectual Property Rights Coordination Centre and law enforcement authorities from 27 EU Member States and third parties , facilitated by INTERPOL, have seized over 20 520 domain names that were offering counterfeit goods, for example luxury products, sportswear, electronics, pharmaceuticals and online piracy on e-commerce platforms and social networks.
Apart from seizing domain names being just as lame as telling clickme24.com’s ISP to shut down their website, the clickme24.com case is probably too small for Interpol and Europol.
In light of the above, this article about FBI on anti-counterfeiting: “collaborate early and often with law enforcement” sounds cynical.
What I can say from my experience is that it is very difficult to attract the interest of an official body when it is about anti-counterfeiting, and this for a good reason. Think twice: tax payers’ money is used to subsidize manufacturers’ reputation. There must be a limit to that, and official bodies, therefore, focus on goods that are relevant to public safety, such as medical drugs and food. But not counterfeit clothing.
I believe that anti-counterfeiting has already seen its best days.
Improved logistics make it possible to ship small quantities of counterfeit goods from the manufacturers to the end consumers. As long as a counterfeiter “flies under the radar”, nothing much will happen. Selling counterfeit over a dedicated website can work if some basic rules for disguising business operations are applied.
People who deliberately buy counterfeit know what they are doing. Anti-counterfeit laws and regulations are not designed to make this ultimately illegal.
It is very difficult to attract the interest of an official body when it is about anti-counterfeiting, and this for a good reason. Think carefully: taxpayers’ money is used to subsidize manufacturers’ reputation. Unless public security being in danger or unless there is an organized crime involved, there is almost no reason for governments to interfere with counterfeit products.
Manufacturers should take back their responsibility for their products: provide a means for end-consumers to find out whether they are buying genuine products. That must come with marketing that teaches consumers why they should buy the original. I have given talks about this, check out this (click here).
A word to the wise is sufficient.
Martin “Anti-Counterfeit” Schweiger