An Examination of the Liability of Proprietors of E-Commerce Sites for Trademark Infringement

Description

ABSTRACT

An Examination of the Liability of Proprietors of E-Commerce Sites for Trademark Infringement

Christian Aniukwu*

One of the gains of the advancement in information and communications technology in Nigeria is the emergence of online markets, otherwise called e-Commerce sites. These sites have over time become the choice marketplace for many, not just the rich, but for all who perceive that purchasing their needed products online are more convenient. The e-Commerce sites have also advanced from just offering electronics and similar household products to virtually all products and services that any human being would need. The attractiveness of the e-Commerce sites to the public, which has led to its popularity and high patronage has also attracted several sellers online. Some of the sellers at the brick and mortar markets have also increased their visibility to customers by registering and selling their products on the eCommerce sites as well. The influx of many online stores on the eCommerce sites concomitantly increased the influx of counterfeit products on the eCommerce sites. Thus, contrary to the envision that eCommerce sites offer only
genuine products from brands, manufacturers and sellers, counterfeit products also flood the eCommerce sites. The proprietors of eCommerce sites have always relied on the safe harbour principle to deny any liability for trademark infringement or counterfeiting activity on their online marketplace. It is our submission in this paper that, although the proprietors of the various eCommerce sites do not directly offer products for sale to consumers, they are in some circumstances liable for any trademark infringement or counterfeiting activity carried out by any of the vendors trading on the online marketplace.

Keywords: e-commerce site, Online market, Online stores, Sellers, safe harbor, genuine, counterfeit.

INTRODUCTION
Technology has undoubtedly advanced the customary way of living of all people. The influx of technological changes and inventions has drastically advanced the way things are done – from the ordinary to the desired.₁ Markets are now at the click/punch of the finger of consumers. The ease brought about by the online markets makes the online markets a desirable alternative to conventional physical markets. As more sellers and buyers shift their business activities on the online markets, counterfeiting and trademark infringement activities are also carried on to the online markets.

* LL.B (Hons.) (Nig.), BL. Associate in the Intellectual Property Law Department of Aluko & Oyebode, Lagos, Nigeria The author focuses on corporate and commercial law with strong biases for intellectual property law, data protection law, internet law and competition law.

1. Nkem Itanyi, ‘Impact of Information Technology in Legal Education: A Focus on Legal Research and Teaching in Nigeria’ (48th Annual Conference of the Nigerian Association of Law Teachers (NALT), Afe Babalola University Ado Ekiti (ABUAD) Ekiti State, Nigeria, 31 May – 5 June). 439-465.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.10 NO.3