Google appears to be exploiting a loophole in the law which means that search engines are not obliged to remove links to websites displaying items that infringe intellectual property rights or trademarks

London and Los Angeles: Google is putting consumers at risk of buying fake car parts, pharmaceutical products and toys by refusing to de-index websites that regularly feature counterfeit goods.

A new study by brand protection company Incopro found that up to 60 percent of results returned by search engines lead consumers to websites that sell fake and possibly dangerous goods. In more than a quarter of cases, search engines feature counterfeit goods in their top three results. Incopro is calling on search engines to remove the links to these websites in their search results (this process is known as de-indexing).they are told about them It believes that by working with rights owners, it would be possible for search engines to remove websites featuring fake goods at scale.

To produce its white paper Incopro studied search engine results in five key industries: pharmaceuticals, automotive, children’s products, white goods and safety equipment. In each case, Incopro used its software to search for goods by specifying a particular brand or product, replicating the way in which consumers typically use the internet to find suppliers of specific goods.

The study reveals several worrying insights, including:

• In pharmaceuticals, six in 10 of Google’s first-page results following searches for the antibiotic Bactrim were for locations very likely to be operating unlawfully;
• In the children’s products category, a third of search results for a “Comotomo teether” featured potentially harmful products that misuse the Comotomo trademark;
• In the white goods sector, a search for refrigerator filters using established reference terms repeatedly directed consumers towards a website selling counterfeit goods.

“Consumers are at risk of buying counterfeit and possibly harmful products, as a result of clicking through in good faith from results generated by search engines they trust,” Simon Baggs, co-founder and CEO at Incopro, said. “At best, these products will be poor quality or below-standard; at worst, they put consumers at risk of harm, particularly in industries such as pharmaceuticals or safety goods.”

Baggs added: “As well putting consumers at risk, the counterfeit trade jeopardizes the business of genuine producers. OECD data suggests the counterfeit trade is worth more than $500bn a year and it is high time search engines played their part in putting a stop to the fakers, rather than encouraging them to proliferate through inaction.”

Not only are search engines leading consumers to fake goods that have the potential to cause harm but when the link to counterfeit goods is notified to them, they do little to de-index those pages. Google in particular is routinely turning down requests to remove pages on the basis of trade mark infringement. When Incopro’s lawyers asked Google to clarify its position on de-indexing websites where trademarks are infringed, the search giant confirmed that it did not “at this time de-index URLs or websites from its Web Search index on trademark grounds upon request.”

The results are particularly concerning given research suggesting consumers using search engines are very likely to click through to one of the first few results generated. The first result in a search gets an average of 45 per cent of users’ click-throughs according to a study by Optify in 2017. They appear to be exploiting a loophole in the law which means that search engines are not obliged to remove links that lead to platforms displaying items that infringe intellectual property rights or trademarks, essentially websites selling fake goods. The loophole creates enormous difficulty for brand owners looking to protect their rights and consumer safety, around the world.

Incopro is calling for search engines to work more closely with intellectual property owners and brands to remove counterfeiters from the results they present to consumers. Without co-operation from the search engines, Incopro believes new legislation is required to force them to act. Other tech giants, such as Amazon and Facebook are already covered by such laws, but these do not extend to search engines.

Google dominates search, with 92.42 percent of the global market share, but in response to Incopro’s findings it promised only to “evaluate court orders issued against third parties and, where appropriate (with content specifically identified), voluntarily remove content from our Web Search results.” They also warned it would continue to “seek relief from orders against it.” In contrast, when Incopro notifies Facebook, Amazon or eBay that there is a product being sold through their sites that is fake or infringes IP in some way, the companies take action to remove the offer for sale from their platform.Incopro has worked with law firms in several jurisdictions to help them understand better what search engines can do to help stop consumer harm. However, while some countries have more processes for dealing with trademark infringement than others, the process is almost always long-winded and expensive. Search engines could easily protect consumers better and avoid costly litigation by working with the owners of intellectual property rights to remove issues at scale.

Baggs said: “At Incopro, we believe it is essential for the broadest range of stakeholders to work together to combat illegal activity online. That must include the search engine community, which currently makes life too easy for unscrupulous operators to target consumers with fake products and services.”

Leading IP barristers, Richard Spearman QC of 39 Essex Chambers and Mark Vanhegan QC of 11 South Square, have written a legal opinion on the Incopro research. They concluded: “If search engine providers can be subjected to the rule of law in other areas, such as in respect of anti-competitive practices, there is no reason in principle why this cannot be achieved in the field of intellectual property.

“Given that legal backdrop, it is perhaps surprising to read in the White Paper that a  number of search engine providers seem to have adopted the approach that they should not take any steps to block or delist even websites which they know to be marketing only trademark infringing goods. For the reasons explained above, we consider that this may be a too simplistic and legally risky approach.”

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Read the article in Martech Advisor here