September 2021 | by Lili
Complying with the law is almost always more difficult than simply ignoring it. This is especially annoying if your business is among the ones complying but some competitors just sail on without lifting a finger.
This has been the case on online marketplaces many times, especially where sellers from third countries were concerned. Well, not any more.
What changed? Well, a German trader who creates and sells swimming aids on eBay got fed up with adhering to all the necessary legislation and safety requirements, while their Chinese competitors were happily selling on without doing any of it.
In the case of swimming aids, those regulations and safety requirements are no joke. First of all, defective aids can cause critical injuries and even death; no wonder authorities take enforcement of the rules seriously. A well-known sign displayed on products, proving that these requirements are met is “CE”.
By the way, CE doesn’t only work with swimming aids but any other products that have to meet certain quality, health, and safety requirements in the EU. Like, for example, medical-grade face masks.
Image of a face mask sporting the sign “CE”, and one without it
But back to our original case. The German trader contacted eBay multiple times and let them know about the listings that violated health and safety regulations. And what did eBay do? Well, unfortunately, not a lot. The offending listings remained, and everything could have continued as usual. But the trader decided to go one step further and took eBay to court.
And ultimately, the court (the Higher Regional Court of Frankfurt am Main) ruled that the trader was right.
According to the judgement published on 24.06.2021, eBay is responsible to block listings that don’t comply with regulations after receiving notice about them.
In fact, the principle “notice and takedown” means that eBay is not required to check listings for legal infringements when they’re first posted. However, if the marketplace receives a notification about such an issue, they’re obligated to examine and remove the infringing listing. In addition, eBay is required to check for offending listings by this same seller in the future, and if they reappear, they have to be taken down again.
This is good news, as it means that eBay has to respond to infringement notices and act accordingly. (Luckily, the e-Commerce giant has always been very cooperative when it comes to notices sent by globaleyez.) This precedent creates a legal certainty for brands and sellers that comply with all the regulations and wish for a fair competition where everybody else does so too.
Also, the fact that eBay has to monitor the offending seller’s account means that they won’t be able to simply re-post the listing (as it is often the case in our experience.)
Unfortunately, it doesn’t solve the problem of bad quality listings, including fake products, appearing on the marketplaces.
Screenshot of an eBay listing of swimming aids originating in China, with no clear CE signs in sight
This means that brands and sellers are still required to sift through listings, looking for potential non-compliant listings to notify the marketplace about. This is a task they lack the time and resources for, especially considering the amount of revenue they’ve already lost due to fraudulent listings in the first place.
Not to mention the fact that the non-compliant listing is there and available to consumers until somebody notices it. This is a clear health-hazard that lawmakers (and marketplaces) should take into consideration.
So that leaves two courses of action. Either you accept the loss of time and revenue that such offers (and their potential removal) mean, or you hire online brand protection experts to do it for you.
In our opinion, this ruling is very good for law-abiding brands and sellers. The court has shown that following the rules is definitely worth it, and that breakers of the law won’t be able to get away with it in the future.
Also, the ability to report non-compliant behaviour (and getting results!) gives power to law-abiding traders who’ve often felt powerless against the flood of cheap, bad quality goods from third countries. In this case, even German authorities received a helping hand, because the marketplace the illegal offers are listed on is much more powerful against them. After all, German authorities have no jurisdiction in China or any other third country.
However, there’s one tiny problem: the issue of noticing. Who has the time, tools and expertise to sift through countless marketplaces, looking for non-compliant listings?
Our marketplace, social media and image monitoring services are geared towards detecting IP-right infringing listings on marketplaces, social media platforms, and on the internet in general. Our state-of-the-art software tools employ countless adjustable filters to tailor our search to your exact needs. We find counterfeits, grey market products, and cheap, bad quality items that potentially break numerous legal requirements in their host country.
We have excellent working relationships with many major and minor marketplaces, including eBay and over 150 others in the world. Because, unfortunately, eBay is not the only one where these cheap, non-compliant listings may pop up.
After the court case, eBay released a statement condemning any attempt to use the platform for non-compliant listings and calling all sellers to act according to eBay’s policies. In the statement, eBay promised swift and effective action upon receiving notification about a problematic listing.
(As a side note, we have to highlight the fact that eBay has always been very cooperative when we approached them about an infringing listing and we completely trust them to take appropriate action in the future as well.)
Moreover, eBay’s statement also emphasises that the marketplace operates safety filters that block inappropriate listings before they even appear on the platform. In 2020 alone, around six million such listings were filtered and blocked. To complete this, eBay also employs human staff to go through the marketplace and block listings that may have escaped the filters.
While this is great news, it’s clearly not enough. Non-compliant and IP-right infringing listings still appear on eBay (and many, many other marketplaces) every day. If you want to keep your brand safe,