Livestream shopping where buyers and sellers transact in real-time video is growing in the United States while technology to police counterfeit goods has so far not kept up, a situation that makes it easier for fake goods to flood the market, patent lawyers said.
Livestream shopping has been popularized by e-commerce sites like Alibaba.com and TikTok's sister company Douyin after dominating the retail scene in China.
In the U.S., TikTok merchants hawk jewelry, pre-owned Louis Vuitton handbags and $2 lip glosses during hours-long video sessions. Sellers’ streams can have dozens to thousands of viewers who ask about product materials, prices and availability.
Copyright violations in live video are difficult to track. In general, e-commerce infringement enforcement can often feel like a game of "whack-a-mole" for lawyers and software companies who monitor the internet due to the swelling volume of violations. In one example, software firm Red Points spotted at least 4.6 million instances of global copyright violations in 2023, up from 4 million a year earlier.
Amazon, the largest U.S. online marketplace, identified and seized 7 million counterfeit products globally in 2023, up from 6 million in 2022, according to the company's brand protection reports.
Livestreaming is “haven for infringement until the detection and enforcement catches up to that mode of sales” said Luke DeMarte, an intellectual property lawyer at Michael Best & Friedrich, referring to live shopping.
TikTok and Amazon both said they have advanced technology in place to stop merchants from selling fakes. TikTok said it monitors live video with a mixture of algorithms and humans and Amazon said it uses humans to monitor livestream shopping.
Livestream sales on the web have promise. Americans will spend $1.32 trillion on U.S. e-commerce this year, according to eMarketer, a research firm. Live-commerce could reach 5% of that spending by 2026 as more traditional retailers including Macy's (M.N), Inditex's Zara, Nordstrom (JWN.N), and Kohl’s (KSS.N) adopt the marketing technique, according to Coresight Research.
Some lawyers and the brands they represent use machine learning software to search e-commerce platforms for possible infringement in pictures, product descriptions and advertisements, but live videos bring added challenges.
“By the time you see infringing products being sold on a TikTok live stream and it gets taken down, you should expect that at least some sales occurred in the interim," DeMarte said.
DeMarte and other U.S. trademark lawyers said the live nature of livestream transactions makes it hard to identify and weed out counterfeits and fakes despite growth of new technologies aimed at detecting infringement.
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