Marketplace Chokepoints

eBay and Taobao represent a different dimension of the private transnational anti-counterfeiting regime. These marketplaces are legally operating marketplaces in which some individuals illegally sell counterfeit goods, which differ from infringing sites that may have few, if any, legitimate activities. eBay and the China-based Taobao marketplace have been subject to considerable government and industry pressure to strengthen those enforcement efforts outside legislation and judicial orders. This chapter examines two little-known informal agreements. In the first, eBay agreed, at the behest of the European Commission, to work with rights holders throughout the European Economic Area to crack down on the online sale of counterfeit goods. In the second case, Taobao, China’s largest online marketplace, has worked at the direction of the U.S. government and U.S. rights holders to overhaul its enforcement policies. The marketplaces’ strategies of policing their platforms using automated enforcement programs raise challenges similar to those identified in chapters 4 and 5. Rights holders often employ brand-protection companies, part of the larger private security industry, to identify and remove sales listings for counterfeit goods.