전자상거래에서의 위조품 유통 근절을 위한 온라인플랫폼의 의무- EU의 ‘위조품 근절 및 지식재산권 집행 강화 방안에 대한 권고’와 디지털서비스법을 중심으로 -

Combating the trafficking of counterfeit and pirated goods is difficult because these goods are often produced and distributed overseas. Even if a platform detects the sale of counterfeit goods and blocks the seller's account, the seller can easily create another account and continue selling counterfeit goods. To address this issue, the EU has prepared a “Recommendation on Measures to Combat Counterfeiting and Enhance the Enforcement of Intellectual Property Rights.” This recommendation includes utilizing new technologies to combat IP-infringing activities, ensuring the right to information for IP enforcement, including dynamic injunctions, and imposing obligations on rights holders, online intermediary platforms, and other economic operators to prevent the distribution of counterfeit goods. It also promotes effective information sharing among all actors in the value chain. The EU Digital Services Act includes significant provisions for combating counterfeit goods on online platforms, such as notice and action mechanisms, transparency reporting obligations, risk assessment and mitigation, and trader traceability. Additionally, the Memorandum of Understanding on the Sale of Counterfeit Goods, facilitated by the European Commission, emphasizes not only notice-and-takedown procedures, but also cooperation between rights holders and e-commerce platforms in taking preventive measures and detecting repeat infringers. Transparency reports published by large online e-commerce platforms also emphasize proactive controls and cooperation between the private sector and law enforcement agencies. Based on the EU's recommendations for measures to combat counterfeiting and enhance intellectual property rights enforcement, the Digital Services Act, and the voluntary measures that e-commerce platforms have taken to combat counterfeiting, we can consider imposing an obligation on these platforms to reasonably prevent the distribution of counterfeit goods and recognize liability for breaches of that obligation. We can also consider requiring these platforms to share information about third-party sellers suspected of distributing counterfeit goods with victims, law enforcement, and public prosecutors. Implementing the former option would make it difficult to recognize a general obligation to monitor information under the various approaches reviewed here or under our jurisprudence and case law. However, it would be possible to impose a risk mitigation obligation on large tech e-commerce platforms. The latter is currently possible to some extent under our e-commerce laws. However, the relationship with personal data protection must be clarified to ensure the certainty of information sharing.