• Up to 60% of search results linked users through to counterfeit and harmful products
• Google will only de-index websites based on trademark complaint under court order
• Incopro calls on company to create scalable solutions in conjunction with rights holders

A new study from Incopro has revealed the regularity of sites selling counterfeits being included in Google search results. The company is now calling on the search engine giant to comply with de-indexing requests for such sites, and work with rights holders to build a scalable process that delivers the removal of counterfeit locations at scale.

The study, ‘Search engines: Time to step up’, analysed search results across five industries: pharmaceuticals, car parts, children’s products, safety equipment and white goods. In terms of results, it found up to 60% of pharmaceutical searches for the antibiotic Bactrim linked to sites likely to be selling fakes. One third of searches for a children’s product also led to potentially harmful products. In white goods, consumers were regularly directed toward a counterfeit selling site, while the seventh most popular result in a Yandex search for airbags lead to a site selling potentially harmful products. Additionally, a number of the returned websites acted as directories for marketplaces like Aliexpress and wholesale Chinese sites selling counterfeit bicycle helmets.

Optify found that a search’s first result will receive 44.64% of all click-throughs in a study in 2017. With people clearly prioritising the first results, it’s important to note that 26% of potentially harmful sites appeared in the top three results.

Equally important to note that the research was conducted across multiple search engines, including Bing, Baidu and Yandex. However, with Google in possession of 92.42% of the global market share, the brunt of the research and advice was focused on its practices – in particular its approach to de-indexing.

In that regard, Google’s position is clear. Speaking to Incopro, the company stated: “Google does not at this time de-index URLs or websites from its web search index on trademark grounds upon request.” This is in contrast to its de-indexing of websites identified with spam, phishing, malware, or copyright infringement.

Of course, search engine liability has long been a hot topic and – while internet platforms such as Amazon and Alibaba have taken an increasingly proactive approach to the availability of counterfeits on their sites – search engines are not automatically treated as hosting platforms in the same way.

It is the spectre of a regulation change that Incopro hopes will encourage Google to adopt a more voluntary stance on de-indexing. Simon Baggs, CEO and co-founder of Incopro, commented to WTR: “Incopro has met with Google about the concerns identified in the White Paper. We would like to believe that Google will opt for a voluntary change that involves Google de-indexing counterfeit sites – the White Paper has been published to put forward the evidence and the legal basis for a change in approach. With this backdrop, Incopro will be focusing on generating cross industry collaboration – to help support a united voice, to present to Governments on the need for regulation in the absence of a voluntary shift.”

For now, rights holders have a number of options. One is to seek court orders against particular sites or requiring Google to de-index a site. This is not without precedent. For instance, The Paris Regional Court has previously ordered ‘AlloStreaming’ websites to be de-indexed by intermediates. The Supreme Court of Canada upheld an order for Google to de-index websites operated by Datalink. In Australia, legislation came into force in December 2018 widening the scope of intermediary injunctions to allow rights holders to seek an injunction against a search engine.

For its part, Google has stated it will comply with court orders against third parties to “voluntarily remove content” from their web search results. However, it also confirmed it would continue to “seek relief from orders against it”. Seeking such an order for every perceived instance of infringement is likely to be a potentially lengthy and expensive legal battle that won’t appeal to a wide swathe of right holders.

If a right owner wants to effectively de-index a potentially harmful listing on Google, there are still options outside of court. Given the unwillingness to respond to trademark notices, Baggs recommends trying other routes: “Does the counterfeit site use copyright imagery? Does the site breach health and safety regulations? Does the site breach Google’s own policies on fraud etc? These are questions that right owners need to ask themselves at present when thinking about search engine removal.”

However, Incopro’s White Paper is challenging Google to cooperate with rights holders and brand protection companies to build a scalable process that delivers the removal of counterfeit locations at scale.

___

Read the article in WTR here