The digital surge caused by COVID-19 over the last two years accelerated the importance and reliance of consumers on e-commerce and social media to see, shop and interact with the products of fashion and luxury brands. This event also gifted counterfeiters and scammers the perfect opportunity to further subvert the authentic online shopping experience by using emotive offers like ‘pandemic bankruptcy sale’ to give a sense of urgency and highly discounting (counterfeit) goods to entice those many consumers whose income had suddenly became uncertain.

Two key trends that were only just emerging pre-2020 are now unfortunately commonplace. Research has found many influencers have been openly endorsing fakes and sharing where to buy them to hundreds of thousands, sometimes millions, of followers on Instagram, Snapchat and TikTok alongside using hashtags like #designerdupe, including URLs to counterfeit web shops in profile bios and taking commissions to promote particular ecommerce platform sellers. This is particularly concerning given the importance of legitimate influencer marketing for many brands. Brands are already under pressure to compete with and disrupt the production, distribution and sales of counterfeits, but now they must seriously compete against the online marketing of them as well across multiple platforms at once.

The second trend has been the evolution of scam or counterfeit advertising on social media platforms, predominantly originating from China. Instead of running global advertising campaigns that were relatively easy to spot and remove, these criminal networks are now using micro-targeting advertising to reach consumers that lead to language-specific websites – for example with identical advertisements and landing pages in Spanish, Polish or Greek, but using different advertising accounts for each ad. In this way, these advertisements are much harder for brand protection teams to identify and require keen-eyed and daily monitoring to filter them out from legitimate advertising, which has also massively increased in the last two years. The knock-on effect from these fraudulent adverts can be increased customer service tickets from defrauded consumers alongside an erosion of trust in the advertising of the legitimate brand.

The main challenge for brand protection teams enforcing in the social media space in 2022 is that their role will increasingly require more disruption of counterfeit visibility on top of already working to halt sales activity such as shutting down websites or removing listings on e-commerce platforms like eBay, Aliexpress or Amazon.

This type of enforcement – post by post, photo by photo - can feel like trying to empty the sea with a sieve; however when identifying accounts with 50,000+ followers, a notice and take down can cause significant impact on a rogue seller if their account gets shut down.

One of my favourite sayings is “you’ve got to be in it to win it” and brand protection teams and their enforcement vendors will need to use this mantra for 2022 when looking at the evolving social landscape, especially as it starts crossing over into the Metaverse. Only by constantly watching the social space can you get ahead of new counterfeiting trends and move closer to predicting how or where the infringers might appear next.

This increase in workload driven by the pandemic is also running in parallel to the initial forays by the major social media platforms offering direct e-commerce channels to consumers thus adding an additional avenue to investigate and monitor. There is also the time sensitive nature of live streaming offers of counterfeit to contend with and the hard reality that the sun never sets on counterfeiters uploading new content across the globe. As such, any online brand protection strategy for 2022 should be about scaling up monitoring where possible, finding efficiencies in bulk takedowns and prioritising enforcement where it really counts.

While these challenges cannot be understated going into 2022, there is also a sense of optimism between rights owners for delivering meaningful and practical enforcement collaboration. This is not just between e-commerce and social platforms and brands, but also between brands themselves. With law enforcement and Customs’ attention being understandably refocused due to counterfeit vaccines, medicines and PPE in March 2020, it exposed a need for greater alignment in the fashion and luxury sector to work on joint cases to bring faster and greater disruption to persistent counterfeiters. Fortunately, that need was met and now more so than ever rights holders and other stakeholders like external counsel, investigators, and organisations like the Anti-Counterfeiting Group (ACG) and React are all working together with trust and transparency.

Unless your brand has only one or two major competitors, the old belief that if you take enough enforcement action for a certain period then counterfeiters will simply give up and move on elsewhere no longer holds water. In the crowded and booming fashion and luxury sector, you can guarantee that most counterfeiters will be targeting multiple brands at once, often just changing the logo on the same base unit of clothing. By requesting joint test purchases with other rights owners, approaching law enforcement as an impacted group and sharing multi-brand seller targets with the marketplace platforms can result in the greater exposure of counterfeiters to enhanced scrutiny – exactly the one thing they don’t want. It was also great to see during the pandemic the launch of Amazon’s Counterfeit Crimes Unit and Mercado Libre’s Anti-Counterfeit Alliance to expand the opportunities for rights owners to work directly with those platforms on cases. As the world slowly starts to open up again, I’m confident this momentum of collaboration will continue and we’ll be taking the anti-counterfeiting fight to even more factory and warehouse doors. See you there.

By Alastair Gray, Head of Digital IP Enforcement & Global Strategic Operations – Tommy Hilfiger

Alastair Gray is Tommy Hilfiger's Head of Digital IP Enforcement & Global Strategic Operations with more than fifteen years’ experience investigating and countering complex IP infringement and fraud across multiple jurisdictions.

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