Somebody Is Selling Your Product. They Did Not Make It

A counterfeit takedown is the one piece of brand protection a small seller is expected to handle alone, and almost nobody is shown how it works before they need it.

You find it on a Tuesday. Your product, your photograph, your description with three words changed, on a shop you have never heard of at forty per cent of your price. The instinct is to send an angry message and then to send a takedown, in that order.

Both instincts are wrong, and the second one has a penalty attached. A takedown notice is a legal document that names a specific right, and in the United States it carries an explicit statement made under penalty of perjury. The tooling that promises to generate hundreds of them is selling you exposure alongside convenience.

What right are you actually claiming?

Usually one of three, and naming the wrong one is the most common reason a notice is ignored. Platforms route notices by the right claimed, and a trade mark complaint filed through a copyright form goes to the wrong queue and dies there.

The first possibility is trade mark. Under section 10 of the UK Trade Marks Act 1994, a person infringes a registered trade mark by using in the course of trade a sign identical with the mark for identical goods. Where the sign is merely similar, or the goods merely similar, infringement requires a likelihood of confusion on the part of the public, which includes the likelihood of association. A mark with reputation gets a third route, covering use that takes unfair advantage of or is detrimental to its distinctive character, whether or not the goods are similar at all.

The word doing the work in all of that is registered. The USPTO puts it plainly on its own page explaining what a trademark is: ownership comes from use, but an unregistered mark grants limited rights only in your geographic area, while federal registration creates nationwide rights. A brand without a registration is not defenceless, it is simply arguing a harder case, and platform brand programmes generally will not admit it at all.

The second possibility is copyright, and for most small brands it is the practical one. Your product photograph is a creative work you own from the moment you took it. If the counterfeit listing uses your image, you have an infringement you can evidence in ninety seconds by producing the original file with its metadata.

The third is consumer protection or platform policy, which covers the listing that is misleading rather than infringing. This route is slower and less certain, and it is what remains when the seller has copied your idea without copying anything you own.

Why did generated images change this?

Because the copyright route depended on the counterfeiter being lazy. For years the fastest takedown was available precisely because fake listings stole real photographs, and producing original imagery of a product you do not have was expensive.

It is not expensive now. A seller can generate a plausible studio photograph of a product they have never handled, in a style that matches your catalogue, without touching a file you own. The listing is still deceptive and the goods may still infringe your mark, but the quickest proof you had is gone, and what remains is the harder trade mark argument that needs a registration.

Two practical consequences follow for a small brand. The first is that registering the mark moved up the priority list, because it is now more often the only route you have. The second is that your photographs are worth watermarking in a way that survives a crop, not because it stops anybody, but because it preserves the easy claim for the cases where the copying is still lazy.

The related failure, where the whole shop rather than the listing is duplicated, has its own dynamics and its own remedies, which we went through in the piece on what happens when somebody clones your shop in an afternoon.

What does a notice have to contain?

Enough that somebody who has never heard of you can act on it without doing legal research. Both major regimes say a version of that, and the American one is the most specific about the elements.

Under section 512 of the United States copyright code, an effective notification requires a physical or electronic signature of a person authorised to act for the owner, identification of the copyrighted work claimed to be infringed, identification of the infringing material with information reasonably sufficient to locate it, contact information, a statement that the complaining party has a good faith belief the use is not authorised, and a statement that the information is accurate, made under penalty of perjury.

The European framing is different in shape and similar in effect. Article 16 of the Digital Services Act requires hosting providers to run notice mechanisms that are easy to access and user friendly, accepting notices by electronic means, and it lists what a notice should carry: a substantiated explanation of why the content is considered illegal, the exact location such as specific URLs, the submitter's name and email, and a good faith statement. Its third paragraph contains the sentence worth writing to: a notice gives the provider actual knowledge where it enables a diligent provider to identify the illegality without a detailed legal examination.

The middle rows are where most amateur notices fail. A provider reading an assertion that something is obviously counterfeit has been given a conclusion rather than a fact, and they cannot act on a conclusion without the detailed legal examination the rules say a good notice should make unnecessary.

What happens if you get it wrong?

Two things, and the second is the one nobody expects. The listing comes back, and you can be sued for the notice itself.

Section 512(f) makes any person who knowingly materially misrepresents that material is infringing liable for damages, including costs and legal fees, incurred by the injured party who relied on the misrepresentation. That injured party can be the seller, the platform, or both. It is a narrow provision, since it requires knowledge rather than carelessness, but it is the reason to treat volume generation of notices with suspicion.

That matters specifically because the obvious use for a model here is drafting notices at scale. A tool that finds two hundred suspicious listings and produces two hundred notices has produced two hundred sworn statements in your name, about listings you have not looked at, some of which will be your own resellers, your own distributors, or a genuinely unrelated product that happens to share a word. The efficiency is real and the exposure is personal.

The restoration mechanic is the other surprise. On receiving a counter notification the provider must tell you, and must restore the material in not less than 10 nor more than 14 business days, unless you have filed a court action seeking to restrain the activity. Many brands discover this clause when a listing they removed quietly reappears a fortnight later, and by then the window to do anything about it has passed.

Where should a model be used, then?

For finding, ranking and evidencing. Not for asserting. The division is the same one that applies everywhere else in this business, and it happens to align with where the legal risk sits.

Finding is genuinely hard by hand and genuinely suited to automation. Image matching against your own catalogue, run across marketplace search results, will surface listings you would never have found, including the ones using cropped or recoloured versions of your photographs. Text matching on unusual phrases from your product descriptions works even better, because counterfeiters copy copy. A distinctive sentence in your listing is a tracer dye.

Ranking is the step that saves you from yourself. Not every match is worth a notice. Sort candidates by whether the seller ships to your markets, whether the price is low enough to be a fake rather than a discounter, and whether the listing uses your imagery or your registered mark. Most brands find the list that matters is a dozen long, not two hundred.

Evidencing is tedious and mechanical, which is what automation is for. Capture the marketplace listing, the seller identity, the price, the shipping origin and the date, and store them so that a notice can be assembled from records rather than reconstructed from memory. A folder per seller with dated captures is worth more than any drafting assistance, because the second notice about the same seller is stronger than the first.

Is the listing even the right target?

Often not. Removing a listing removes one address. The seller reposts within hours, sometimes within minutes, and you have bought yourself an afternoon at the cost of a morning.

Three other targets tend to do more. The payment route is the first, since a seller who cannot take money has a shop that does not function, and payment providers have their own policies on counterfeit goods that are frequently enforced faster than platform notices. The second is the supply, because a small brand can sometimes identify the factory or the wholesale listing that all the fakes draw from, and one letter there is worth fifty takedowns. The third is search, where a delisting request removes the route most buyers used to find the fake in the first place.

The listing still matters when the marketplace is where your customers shop, because a fake sitting next to your real listing costs you the sale directly. Outside that case, ask what the notice actually stops before spending a day on it.

Do you need a registration before you start?

You need one to use most of it well. Platform brand protection programmes are generally built on a registered trade mark, and they are where the leverage is: a registered brand usually gets faster handling, bulk tools and a named contact, none of which are available on the ordinary complaint form.

If you have not registered, the sequence is still worth starting. File in your main market, use the copyright route on your photographs in the meantime, and document everything you find so that the file is ready when the registration issues. The gap between application and registration is where small brands lose the most ground, and the only mitigation is evidence collected early.

One caution for anyone whose brand assets were themselves generated. A logo produced by a model sits in an awkward place, because the copyright position is unsettled while the trade mark position is not, and the practical answer for most brands is to lean on the registration rather than on authorship. We took that apart in the piece on the AI logo you cannot copyright but can trademark.

What about sellers who are not quite counterfeiting?

They are the larger population and they need a different approach. A reseller of your genuine goods, a shop using your product name as a search term, a dropshipper listing your item they have never stocked: none of these is a counterfeit, and a counterfeit takedown claiming otherwise is the kind that attracts a counter notification.

The test that separates them is whether the goods are yours. If a buyer receives your actual product, you have a distribution problem rather than an infringement, and it is solved by a reseller policy and by your wholesale terms rather than by a platform form. If the buyer receives something else in your name, that is the infringement, and the evidence is a test purchase.

Test purchases are worth the money. A single order placed from a suspicious listing, photographed on arrival and kept unopened where possible, converts an argument into a fact and is frequently the thing that makes a slow platform move. Where the goods sold are themselves machine generated designs sitting on your brand, the marketplace policy questions get more tangled, and we set those out in the piece on what you may sell when the AI made it.

A working order for a small brand

Register the mark in your main market, and do it before you need it. Watermark and archive your product photography with dates. Set up one automated search that looks for your distinctive description phrases weekly, and read the results yourself. Make a test purchase from anything that looks like a real fake rather than a discounter. Then send one notice, about one listing, naming one right, with the evidence attached.

Do not buy a service that promises hundreds of automatic takedowns until you have done the first five things, because the service is doing the last step at volume and the last step is the one carrying your signature.

Underneath all of it is the reason counterfeiters target small brands at all, which is that your product has been validated by somebody else's marketing budget and you have no enforcement department. The counterweight is that you can move faster than they expect and that the evidence you need mostly already exists in your own files. Owning your storefront and your product data rather than renting them makes that archive easier to assemble, which is one of the quieter arguments for building a shop whose records belong to you.