The EU is stepping up the pressure on eBay at the same time as secretly negotiating criminal sanctions within the ACTA, as part of a long-term IPR enforcement strategy.

The European Commission is holding talks about a notice and take-down procedure for online auction and ecommerce sites. The objective of the measures under discussion is to enable large rights-holders and trade-mark owners to get auction listings and sellers removed and to force liability for individual listings onto auction site owners so that they will police their users. The major auction site owner is of course, eBay. The IPRED directive is being wielded at eBay, as the EU's weapon of choice if eBay does not agree.

The existence of the talks was disclosed

in a European Commission policy document just released on IPR enforcement. It is an official 'Communication' the Council of Ministers, entitled Enhancing the enforcement of intellectual property rights in the internal market

The document also reveals the European Commission is pushing for stronger enforcement measures as part of its legislative plans for the next five year. Within those measures is the Anti-counterfeiting Trade Agreement (ACTA) which is now officially - according to this document - part of EU long term policy on IPR enforcement.

In parallel, the Council of Ministers has listed another new document for the ACTA negotiations, the title which indicates that the EU could be secretly writing new proposals for criminal measures in respect of IP enforcement and Internet copyright. The title of the l document is Anti-counterfeiting Trade Agreement ( ACTA) Chapter 2 -Criminal Provisions It is listed on an official European Council website, but is only available on request. It is not clear whether the Council is under any obligation to fulfil requests for the document.

The Commission Communication was written by the Commission's IPR Enforcement Unit. It is the first stage of a legislative process, and is a preliminary proposal for "enhancing enforcement of intellectual property" against 'piracy and counterfeiting'. De-coding the EU officialese, that means, they want to look at new and increased sanctions in respect of Internet downloading, and eBay trading. They are also targetting offline issues such as market traders and counterfeiting of physical products.

The European Commission Communication reveals:

-secret talks in respect of online auctions and eBay to get listings removedvia a notice and take down procedure

- if no 'agreement' is reached, the Commission is threatening legislation

- Commission proposes to bring in new 'non-legislative' measures which are unspecified, but reference to Council Conclusions of 25 September 2008

The text in the Commission Communication relating to eBay is here:

"the Commission has organised a structured dialogue between stakeholders to facilitate mutual understanding and to find solutions that will be in the interests of all concerned. A series of meetings have already taken place to address specific issues relating to the sale of counterfeit goods over the internet. Further meetings have been scheduled before the end of the year, which could lead to a Memorandum of Understanding, dealing with issues such as prevention, identification and removal of infringing offers (e.g. Notice and Take-Down procedures) and sellers from internet platforms. However, if voluntary arrangements cannot be agreed, the Commission will need to consider legislative solutions, in particular in the context of the IPR Enforcement Directive"

The obvious 'stakeholder' involved will eBay, whom the Commission has been out to get for some time. Any new notice and take-down measures will impose liability on eBay for alleged trade mark infringements and will put many small traders out of business. It will make it almost impossible for people to use brand names as keywords, and without stating the brand name they cannot give a true description of the product they are selling. Many individuals and small businesses make a living out of eBay trading and in doing so, they provide a much-needed service for consumers.

Interestingly, it also states the following : "any 'voluntary' agreements between companies or industry groups must be proportionate and they must respect fundamental rights, including the right to freedom of expression, privacy and due process."

It is already public that the Commission is under heavy pressure from makers of luxury goods to prevent trading of their goods on eBay. We await with interest to see how the EU can balance to two requirements. The first step will be to resolve the Telecoms Package deadlock.

*There is a more detailed interpretation of the Commission Communication from an IP lawyer on the IPKat blog .

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) EU plans emerge for eBay and ACTA http://www.iptegrity.com 15 September 2009

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