M’Bia H. De-Yolande, PhD. Candidate
China University of Political Science and Law, Beijing, Xitucheng Road, N0. 25,100088.
Email: oreargent@yahoo.fr / Corner333stone@yahoo.com
INTRODUCTION
Online auctions have grown to become one of the popular segments of E-commerce.[1] The explosion and popularity of auction markets sites such as eBay or Trade Me[2] is a clear proof. With low prices and no reserve price especially for high priced items online auction is a privilege choice for customers. All kind of items are proposed allowing sellers to reach myriad of people.[3] According to a report of eBay statistics the total amount of sellers on auction sites was 25 million in 2015, in addition the amount of gross merchandise volume sold in 2015 was 82 billion.[4] Though, this contemporary business medium faces an important drawback- auction fraud.
Unlike what most people visualize, both sellers and buyers can participate in auction fraud for their own benefit.[5] According to IC3, there are several ways online auction fraud may occur: misrepresentation of a product for sale, non-delivery of merchandise or services sold, triangulation[6], fee stacking[7], multiple bidding[8], and finally shill bidding[9] . These elements put online participants at big risks just as the Internet Complaint Center reported: online auction in one of the top two most dangerous internet crimes.[1] Responding to the threat, The U.S. Federal Trade Commission and 29 states Attorney Generals[2] had launched a law enforcement crackdown targeting online auction fraud that led into scammers’ assets freezing and the endorsement of consumer education campaign. Also, according to data from law enforcement and consumer protection organizations, fraudulent schemes appearing on online auction websites are among the most frequently reported form of mass-marketing fraud.[3]
In 2005, a study conducted by the OECD revealed the extent of counterfeit products sold on auction sites.[4] US$ 200 billion of cross-border trade products are believed to be the result of that practice[5]. Online auction websites too often serve as platform to sell or distribute forgeries globally and the reason is that generally speaking, warranties of authenticity and quality are merely existent. The explosion of online marketplace has allowed everything to happen. Trademark owners identify auctions sites as prime responsible for the infringement of their trademarks. Consequently, they have brought lawsuits against number of online business operators in auction such as eBay[6]. European companies first opened the door of suits with Montres Rolex SA, L’Oreal, Christian Dior Couture and its subsidiary LVMH Moet Hennessy Louis Vuitton SA to raise the voice about counterfeit fashion goods on eBay[7].
The law on the other side does not provide an easy gateway to the issue. Should an online operator be held liable for selling false items on its site? The practice has proved two things; first that judges prefer to decide case-by-case, second that online operators have won a kind of immunity.
Existing laws offer some guidance, but the courts could end up going any way on the issue[8] as they attempt to balance perhaps the greatest threat to trademark law with a deeply rooted reluctance to hold website operators responsible for the wrongdoings of fraudsters. If courts were to hold that auction sites must seek out infringement on its site, this would increase the strength of trademark holders’ rights. Yet, if auction sites had no responsibility for infringement on its site, trademark infringement on the Internet would likely increase, causing more consumer confusion and a decrease in the goodwill of trademarks. A safe harbor will provide balanced protection for online marketplaces, while also guarding trademark owners’ rights. Recognizing that society wants to support businesses that contribute valuable services, an answer to the issue would be for online auction sites to work with intellectual property rights holders in regulating infringement.
To understand fraud in online auction, it is convenient to classify the various types of online auction fraud according to the three time periods in which the fraudulent behavior can take place: before, during and after the auction bids. Then, to the infringement of trademark in OAS is given a special focus. On this regard there is a principle and an exception worth discussing. At the end, the article concludes that the issue related to trademark infringement in online auctions shows that the liability or non-liability of auction sites operators lay on the circumstances, if not on the decision of the court ruling case-by-case.11,P1-22.
