In the fast-paced world of online marketplaces, the allure of quick and seemingly cost-effective solutions can lead brands into risky territory. At Vorys eControl, we’ve witnessed a growing trend of tech companies playing lawyer and positioning themselves as legal experts, promising easy takedowns and high success rates.
This is often the case for brands that come to Vorys eControl after hiring tech companies advertising quick, easy removals, and touting high success rates and their ability to demand source information. These companies tell brands they don’t need lawyers and they should choose the cheaper option that’s even more effective. Unfortunately, the reality is often quite different. These companies rarely deliver on their promises — and when they do, the brand may also be unwittingly signing up for increased legal exposure.
In pursuit of swift resolution, many of these tech companies engage in deceptive—and sometimes fraudulent—strategies that can lead to high liability. For example, certain companies will make counterfeit complaints to Amazon without evidence the product in question is actually counterfeit and without performing a single test buy. Others pose as members of the brand team and represent to the unauthorized sellers that the team is considering making that seller authorized—an outright lie.
While some takedown companies’ strategies may have short-term success, they also have long-term risks, and what these companies cannot do is protect a brand from litigation arising from their methods nor defend them from lawsuits. What’s worse, many of these tech companies require a strong indemnification clause in their own favor, meaning the brand is on the hook for its own legal costs and defense for the tech company. Basically, there's no scenario where companies playing lawyer work out in their favor.
With the rise of non-legal-based enforcement, the Vorys eControl team has observed an uptick in lawsuits, which stems from risky tech company takedowns. In many instances, unauthorized sellers have sued the brands, alleging defamation, trade libel, unfair competition, and interference with contractual relations. Sometimes, the unauthorized seller even seeks to cancel the brand’s trademarks. When brands come to us after receiving such lawsuits, we must deliver the bad news that, in some instances, there is no good defense to the false and fraudulent conduct of the tech companies.
To avoid this risk, the right experience cannot be overstated. Discount brand protection firms do not have the experience to properly assess when a listing takedown request is a strategic move and when it might catastrophically backfire.
Simply put, effective enforcement requires comprehensive experience with online brand protection and technology-enabled strategic insights offered by Vorys eControl. We consult with and represent brands through every stage of their protection strategy, including pre-enforcement recommendations that can be implemented quickly with low risk, as well as takedowns that are effective, legal, and efficient.
If you’ve been burned by a tech company using improper techniques, reach out to attorney Martha Brewer Motley to discuss defense options. Or to explore legally compliant brand protection techniques, email Adam Sherman. You may also contact the Vorys eControl team directly.
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