Live Selling, Hidden Links, and the Everchanging Counterfeit Landscape

As brand owners continue to navigate online space, bad actors aim to capitalize on the ability to manipulate platforms, algorithms, and consumers through deceptive practices. Online platforms continue to implement procedures and tools for rights owners to proactively combat the sale of infringing and counterfeit merchandise. These tools can assist, however, there are certain activities and trends that are not as easily detected as a hashtag or stock image. Bad actors are creating new strategies to promote and sell counterfeit goods while strategically evading enforcement. There are a handful of new trends to be mindful of as consumers continue to spend a significant amount of their time scrolling and shopping online.

Hidden Links and Deceptive Marketing

The various new technologies that many online marketplaces implemented to combat the sale of counterfeit goods, have led to a proliferation of hidden links on popular e-commerce platforms. “Hidden links” strategies rely on an “Order This – Get This” strategy—typically, sellers advertise for sale a generic, often non-branded item and then send a different product to the purchases, which is oftentimes counterfeit or infringing. In addition to the promotion and advertising of hidden links, many sellers share videos and tricks for website-specific strategies that consumers can utilize to tailor their search and locate  counterfeit products. Popular keywords or brand nicknames are also used to help locate counterfeit items masked by a hidden link. 

In November 2020, Amazon filed suit in the United States District Court for the Western District of Washington against more than 12 individual influencers and businesses for allegedly advertising, promoting, and facilitating the sale of counterfeit goods. In a Press Release, Amazon stated that, “among the 13 defendants, the lawsuit alleges that [two named individual influencers] conspired with sellers to evade Amazon’s anti-counterfeiting protections by promoting counterfeit products on Instagram and TikTok as well as their own websites.”  The sellers were alleged to have posted for sale a generic, non-branded item that would match their Amazon listing beside a luxury item. The post would read “Order This - Get This”. It is alleged that the “Get This” product was counterfeit. Amazon claims that these Influencers and businesses used various social media platforms to market this scheme and direct consumers to Amazon for the transaction.

Such activity highlights potential issues with “influencer” marketing. Many influencers—including some high-profile influencers—regularly share links to “designer dupes” and counterfeits with their followers.   Social media has normalized a wide array of activities, behaviours and trends that can negatively impact rights holders.  Brand owners and online marketplaces must work together to ensure the promotion and sale of counterfeit goods and designer dupes remains socially unacceptable, despite the plentiful swipe ups shared by verified accounts.

Livestreaming Sales on Social Media

In addition to hidden links, live selling has become one of the most popular trends in 2021.  Livestreaming has become a popular avenue for many retailers since COVID-19 lockdown restrictions have been put into place globally and many legitimate businesses use applications and webcasts to heighten consumer engagement. Unfortunately, counterfeit sellers have likewise grown accustomed to the live sale method—but as a way to evade conventional intellectual property rights enforcement. Similar to hidden links, livestream selling is not a new phenomenon. The ongoing pandemic has merely amplified the problem.

In the counterfeit space, social media platforms that enable livestreaming are challenging to monitor. Most platform policies have strict rules against the advertisement, promotion, or facilitation of the sale of counterfeit goods. However, it is practically  difficult to detect, capture, and enforce against sellers who use various new features to “go live” and sell through a livestream that can be deleted at the end of their sale. Live sales, are, by there nature, ephemeral.  Their “real world” counterpart are the home hosted sales parties of the past. Moreover, sellers may rely on regional popularity/networks when holding their virtual sales events. Many Sellers become popular in particular provinces or regions where friends and colleagues watch, tag and share sales together. In recent weeks, social media platform TikTok announced plans to move into e-commerce and roll out new features, including livestreamed shopping and product catalogues.

Counterfeiting remains one of the largest criminal enterprises in the world. With emerging new technologies and viral hacks, social media platforms and mobile applications that have  an e-commerce element provide a means for bad actors to exacerbate counterfeit issues for brand owners. Aggressively identifying prominent online trends and implementing appropriate enforcement strategies remains a vital part of a well-rounded and proactive anti-counterfeiting