Sale of Counterfeit Products on Online Sales Platforms and Legal Liability of Platforms

Today, the significant reduction of national borders in the online environment and the global accessibility of various goods and services have made e-commerce applications an indispensable element of modern trade. Especially during the pandemic, the limitation of physical shopping alternatives turned e-commerce platforms into a necessary shopping channel for consumers. In Türkiye, this growth has gained remarkable momentum, with the e-commerce volume reaching 1.85 trillion TRY in 2023, marking a 115.15% increase compared to the previous year. During the same period, the number of transactions increased by 22.25%, reaching 5.87 billion.(1) While the convenience and wide range of products provided by e-commerce change the shopping habits of consumers, it also brings along various legal and commercial problems.

One of the most important of these problems is the increasing number of counterfeit products sold through online platforms. While the proliferation of counterfeit products leads to the violation of intellectual property rights (“IPR”) for right owners, it also raises serious concerns about quality and consumer safety. The negative effects of counterfeit products on the economy are also reaching unignorable dimensions.  This study examines the rise in counterfeit product sales fueled by the growth of e-commerce, explores the legal challenges arising from this trend, and analyzes the evolving responsibilities of online platforms in combating illicit trade.

1 ) Role and Responsibility of Online Platforms

Legal Liability of Online Sales Platforms under European Union (EU) Law

The European Union has enacted the Digital Services Act (DSA) to regulate digital services and clarify the responsibilities of online platforms.  

Under European Union (EU) legislation, the civil liability of online sales platforms depends on whether they act as intermediaries and the measures they take to prevent illegal content. Under the E-Commerce Directive and the Digital Services Act (DSA), if the platform only acts as an intermediary and does not directly sell counterfeit products, its civil liability is limited, but if the platform actively contributes to the sale of the products, i.e. stocks, markets or is involved in logistics, it may be held liable.

For example, the Court of Justice of the European Union, in the case brought by Christian Louboutin against Amazon, ruled that the platform could be held liable for the direct shipment of the products. On the other hand, in a similar dispute filed by Coty within the scope of Davidoff branded imitation cosmetic products, the platform was not held liable for trademark infringement since the products were not sent by Amazon and were sent directly by the seller.(2) As can be seen here, the liability of online platforms for trademark infringement related to the sale of counterfeit products is differentiated at the point of whether they directly ship the products or not.

Moreover, according to EU legislation, platforms must establish effective mechanisms for the detection and removal of illegal products and content. In particular, online marketplaces should verify sellers' credentials and provide users with sufficient information about the products and sellers.(3)When it is detected that a counterfeit or illegal product is being sold, the platform must intervene quickly and remove the product; otherwise, legal liability may arise. While brand owners may claim compensation from online platforms, administrative fines may be imposed on platforms that allow the sale of misleading or counterfeit products under consumer protection laws.

Legal Framework in Türkiye

In Türkiye, despite the absence of specific provision in relation to the liabilities of the ISP until recently the decisions of the Court of Cassation have also developed important case law regarding the liability of online marketplaces.  

"Intermediary Liability" according to the  Supreme Court

In its established case law, the Supreme Court has generally recognized online platforms as “intermediaries” and has refrained from holding them directly liable for the sale of counterfeit products. However, the Court has also emphasized that liability may arise if platforms ignore complaints about counterfeit goods or fail to take appropriate measures.

In the decision of the 11th Civil Chamber of the Supreme Court (E. 2019/1234, K. 2020/567), it was stated that the platform cannot be held directly liable in the lawsuit filed by the trademark owner regarding counterfeit products sold on an online platform. However, it is stated that platforms that do not take into account the complaints received about counterfeit products and do not take the necessary precautions may be considered defective.

Similarly,  the decision of the 15th Civil Chamber of the Supreme Court (E. 2021/789, K. 2022/123), underlined that  platforms should take proactive steps to combat  the sale of counterfeit products. In particular, it was stated that measures such as verifying the identity information of the sellers, checking the authenticity of the products and cooperating with the brand owners should be taken.

In another decision by the 19th Civil Chamber of the Supreme Court (E. 2020/456, K. 2021/789), the Court stated that the platforms platforms may be held liable if they are aware of counterfeit sales and do not take the necessary measures act. This decision highlights that online platforms should not remain passive intermediaries, but must take an active role in protecting consumers.

In the recent past, Türkiye has also updated its e-commerce regulations in line with mainly DSA with the publication of the new amendments introduced to the “Law on the Regulation of Electronic Commerce No. 6563" (“E-Commerce Law”) on July 1, 2022.

These new regulations aim to streamline the notice-and-takedown process, ensuring more effective removal of infringing content and reinforcing the obligations of platforms in preventing the sale of counterfeit goods.

Amendments to the Regulation on Electronic Commerce Intermediary Service Providers and Liability of Platforms under Turkish Law:

In light of the above, by 2023, Türkiye’s e-commerce sector had experienced significant growth, making the role of online platforms increasingly critical. In response, Türkiye has taken steps to adapt its legal framework to better address the challenges of online trade and intellectual property protection.

Under Section 4 of the Regulation on E-Commerce Law, which entered into force on January 01, 2023, violations of Intellectual and Industrial Property rights are regulated between Articles 12-14, and the principles generally determined in terms of e-commerce service providers ("SP") and e-commerce intermediate service providers ("ISP") are as follows:

- Complaint applications for violation of IPR are made to ISPs via internal communication system, notary public or KEP.

- Pursuant to the Regulation, the internal communication system is defined as the system created by the ISP to facilitate all forms of communication- easily and free of charge-  between the ISP’s, the SPs and the right owners and their representatives. 

- The Regulation initially allowed these communications to be conducted through technical means such as email until July 1, 2023. However, after this date, all online platforms have been required to implement a dedicated internal communication system in full compliance with the Regulation’s provisions.

- The mandatory documents within the scope of the complaint are the registration certificate showing the right ownership issued by the Turkish Patent and Trademark Office or the banderole form issued by the Ministry of Culture and Tourism or the activity certificate in terms of the professional associations within the scope of the Law on Intellectual and Artistic Works.

- In addition, complainants should clearly state their identity and title information according to whether they are real or legal persons.

- In addition, in case the scope of the complaint is untrue, a declaration is requested from the applicant that he/she is responsible for any damages that may arise.

- The ISP shall remove the product subject to the complaint from publication within 48 hours of receiving the complaint and notify the SP and the right holder.

- SPs may object to these complaints before ISPs and within the scope of the objection, the complainant must share documents and evidence that the complainant does not violate intellectual and industrial property rights and invoices or invoice substitute documents that are suitable to prove the authenticity of the products.

- If it is decided that the SP is justified in its objection, the content shall be re-published within 24 hours at the latest after the objection is received by the ISP and the situation shall be notified to the parties.

- Complaint applications regarding the same product and claim shall not be taken into consideration unless new documents are submitted by the right holder.

Pursuant to the Regulation, the internal communication system is defined as the system created by the ISP to facilitate all forms of communication- easily and free of charge-  between the ISP’s, the SPs and the right owners and their representatives.  The Regulation initially allowed these communications to be conducted through technical means such as email until July 1, 2023. However, after this date, all online platforms are required to implement a dedicated internal communication system in full compliance with the Regulation’s provisions.

Also new improvements were introduced with the last amendment dated in the Official Gazette dated 15.03.2025 and numbered 32835 to the Regulation. The recent amendments have significantly increased the responsibilities of online platforms in Türkiye. These changes require platforms to promptly address violations within 24 hours of notification and add disputed keywords as negative keywords using exact match in all advertising models and campaigns. Additionally, platforms must provide evidence to the Ministry of Trade, proving their compliance with these requirements. The amendments indicate a shift towards holding online platforms accountable for monitoring and preventing intellectual property rights violations more effectively.

With the new regulations, it is seen that e-commerce platforms are recognized as more than just an "intermediary" and more obligations are imposed. In particular, increasing measures to prevent the sale of counterfeit products in online marketplaces reveal how important the responsibility of platforms has become. The recently adopted system emphasizes that online platforms should play a more active and rapid role not only in the relations between the seller and the consumer, but also in the control of counterfeit products and their legal responsibilities.

Conclusion

Following the entry into force of the relevant Regulation, a major e-commerce platform petitioned the Council of State to annul several Articles, including Article 12, which specifically governs the "removal of infringing content concerning IPR infringement.

The Constitutional Court and the Council of State have both confirmed that the applicable Law and the cited Regulation are not unconstitutional. As a result, the Law remains valid and enforceable. Furthermore, the Council of State has repealed its prior stay of execution decision, thereby reinstating Article 12 retroactively in accordance with the governing legislation.

Under the reinstated Article 12, the processes for addressing IPR violations shall commence with a complaint application made to the Internet Service Provider (ISP), as outlined in the Regulation. These procedures are designed to align with relevant European Union regulations.

While the Regulation presents a comprehensive and intricate framework, there remain certain ambiguities regarding its implementation. However, marketplaces are anticipated to play an increasingly active role in combating IPR infringement through this new structure. By streamlining the complaint process through ISPs, the workload of courts is expected to be significantly reduced, thereby improving efficiency in handling IPR disputes.

Despite some uncertainties in practical application, the reinstatement of Article 12 marks a critical step forward in the fight against IPR infringement. As the Regulation continues to be implemented, further clarity may be required to ensure its effective enforcement.

(1) https://ticaret.gov.tr/duyurular/turkiyede-e-ticaretin-gorunumu-raporu-yayimlandi  

(2) https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/louboutin-amazon-case-c-14821-and-c-18421-2023-01-31_en?utm  

(3) https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022R2065