The Government released the Draft National E-Commerce Policy which, inter alia, recommends that e-commerce platforms (intermediaries) be mandated to undertake certain anti-counterfeiting and anti-piracy measures. The Draft Policy is all- encompassing, covering the various dimensions of e-commerce, including data, consumer protection, intellectual property and competition. While many of the anti-counterfeiting measures are well-balanced and promote transparency of e-commerce platforms towards their sellers as well as towards trademark owners who choose to register on such marketplaces, some anti-counterfeiting measures and the anti-piracy measures are very concerning. Some of these proposals include: (a) obligation on platforms to take TM owners’ permission for high value goods (b) directly liability to refund customers and delist ‘counterfeit goods’ upon receiving complaints from individuals (c) return to the notice and takedown approach for copyrighted content (d) allowing an ‘industry body’ to identify so-called ‘rogue websites’ which host pirated content, and forward such a list to intermediaries including ISPs, search engines and payment gateways, which will have a legal obligation to block access to such websites.

Some of the Anti- Counterfeiting Measures recommended under the Draft National e-Commerce Policy are:

Anti- Counterfeiting Measures:

E-Commerce players would be required to undertake the following measures:

1. Seller details should be made available on marketplace website for all products. This shall include the full name of the seller (the name of the legal entity), address and contact details including email and phone number.
2. Sellers must provide an undertaking to the platform about genuineness of products they are selling and the same must be made accessible to consumers.
3. Trade mark owners shall be given the option to register themselves with e-commerce platforms. Whenever a trade- marked product is uploaded for sale on the platform, the platform shall notify the respective TM owner. This facility shall be put in place by platforms and made available for interested TM owners.
4. In case TM owners so desire, e-commerce platforms shall not list/ offer for sale, any of the owners products without prior concurrence. However, in case TM owners chooses to opt for this, they would have to undertake to respond to platforms within a certain time limit.
5. In case of specified high value (luxury) goods, cosmetics or goods having impact on public health, marketplaces will be required to seek TM owner’s authorisation (that is, authorised/ distributor/ reseller agreement) before listing the product.
6. In case a complaint is received about a product being fake/ counterfeit, the same shall be conveyed within 12 hours to the owner of the TM. If the owner of the TM informs the platform about the product being sold on its platform to be counterfeit, it shall notify the seller and if the seller is unable to provide evidence that the product is genuine, it shall take down its listing and notify the TM owner of the same, as per the provisions of law;