IP in the e-commerce sector in Latin America (Pt. 2)

Intellectual Property Rights (IPRs) play a key role in electronic commerce in today’s digital economy, considering that we are living in a globally connected economy that allows worldwide business. E-commerce gives companies the possibility to offer their products and services not only in their local markets, where their headquarters are located but also in any other country or region of interest around the world, such as Latin America.  

E-Commerce, more than other business systems, usually involves the selling and offering of products and services that are based on IP rights, i.e. by licensing, import/export, and representation contracts. In this context, IPRs such as registered trade marks are an essential part of the e-commerce ecosystem, since they allow the customer recognition and goodwill of the products that are offered, which are essential elements of the web-based way of doing business.

As it was previously mentioned in Part I of this series on the protection of your IP on e-commerce platforms in Latin America, we will now look deeper into the specific issues of these platforms, with a quick guide on how to ensure that IP rights are best protected when doing business online in Latin America.

In the following paragraphs, we will summarize and briefly explain some of the internal IP protection programs that are run by the most frequently used e-commerce platforms in Latin America, where IPR holders can detect and notify of possible infringements:

Mercado Libre Brand Protection Program

First, we have Mercado Libre, a widespread Latin American e-commerce platform with their  Mercado Libre Brand Protection Program (BPP), which is a tool developed for holders of Intellectual Property Rights. It consists of a notification and removal system for publications that allow rightsholders to report publications on the site containing an alleged infringement of their rights. The program is available to holders of registered trade marks, granted patents, granted utility models, copyrights, and granted industrial models and designs, but it is subject to specific terms and conditions which must be accepted by members to create an account and use the program.

Members must adhere to the terms and conditions of the program, including making reports based exclusively on alleged infringements of IPRs that have been adhered to by the BPP. Mercado Libre reserves the right to reject any application for membership or suspend or disable an existing account. Members are responsible for all reports, rectifications or ratifications of reports, and messages sent within the framework of their reports. The program must be used to make reports based exclusively on alleged infringements of IPRs, and Mercado Libre will not be responsible for any damages or losses caused by members’ use of the BPP.

The terms and conditions of the program are subject to change at any time, with notice given on the site 10 days in advance, and members who do not agree with the changes may request to cancel their account at any time.

Amazon Brand Services Program and Project Zero

Secondly, we have the known worldwide e-commerce platform Amazon and their commitment to provide trusted experiences and safeguarding brands and customers from fraud and abuse, with the Amazon Brand Services Program. To achieve this vision, Amazon develops advanced technology, including machine learning models, to identify and stop bad actors and bad listings.

Amazon also offers various tools and programs to help brands register intellectual property, protect, and grow their brand, report, remove infringements, and collaborate with Amazon’s legal team to pursue legal action against counterfeiters. Amazon has a dedicated team of professionals who work tirelessly to prevent, detect, and remove counterfeit, fraudulent, and infringing content online.

Amazon’s proactive controls have blocked or removed millions of listings that were suspected of being abusive before they were reported by brands and have received positive feedback from brands that have participated in its brand protection programs and appreciate its efforts in driving counterfeits to zero.

Project Zero, is one of the services offered by Amazon to help brands protect their intellectual property rights and prevent counterfeiting on Amazon’s online platform. Project Zero consists of three features: automated protections, self-service counterfeit removal, and product serialization.

The brands that are enrolled in Project Zero can provide Amazon with key data points to help detect and remove suspected counterfeits, access the ability to remove counterfeit listings without contacting Amazon and add unique codes to their products to verify their authenticity. Project Zero requires brands to have a prior Brand Registry account with a registered trade mark and a Rights Owner role and to have submitted reports of potential infringements with a high acceptance rate. It is intended to benefit both brands and customers by ensuring the quality and integrity of the products that are being sold on Amazon.

Alibaba IP Protection Platform

Last but not least, we have the top Chinese company Alibaba Group (owner of the e-commerce Aliexpress, also commonly used in the Latin American region), which is also committed to protecting intellectual property rights (IPR) and maintaining a healthy and safe e-commerce environment with their Alibaba IP Protection Platform (IPP).

Alibaba also leverages advanced technologies and collaborates with stakeholders to implement best practices in IPR protection, including notice and take-down procedures, proactive identification and removal of infringing listings, and assistance to law enforcement authorities. Rightsholders are responsible for following platform rules when submitting take-down requests, including providing proof of IPR ownership and evidence of infringement.

Alibaba will penalize infringers of its platform’s IPR protection policies and may pursue civil and criminal action where appropriate. Take-down requests or complaints with malicious intent will not be considered, and those who submit such requests may be sanctioned. Alibaba’s IPR protection policies are implemented in accordance with applicable laws in applicable jurisdictions, and the rightsholders can file complaints in the form of take-down requests on the Alibaba Intellectual Property Protection Platform (IPP) for products or product descriptions that allegedly infringe their IPR.

The sale of counterfeit and pirated goods on Alibaba platforms is prohibited, same as infringement of other IPRs and the infringement of these policies may result in product delisting, temporary selling suspensions, permanent account closure, or even civil and criminal action.

Conclusions

As we have mentioned before, e-commerce is a growing and dynamic sector in Latin America, offering many opportunities for European small and medium-sized enterprises (SMEs) to expand their market and reach new customers. However, before entering this market, it is important to consider some legal and cultural aspects to avoid some risks and challenges that may affect the success of your business in the region such as fraud, piracy, or unfair competition issues.

It is strongly recommended to conduct market research and analysis before entering any new market and seek professional guidance if needed.

Finally, it is advisable that IPR holders proactively monitor e-commerce and social media platforms to detect possible counterfeits, and quickly proceed with the most appropriate resolution for each case (i.e. take-down notices, warning letters, civil or criminal actions) to remove and stop the infringement.