On 4 June 2020 the Danish Parliament passed the Product and Market Surveillance Law, which concerns product safety and provides increased powers to the authorities to take action against online retailers such as Amazon, Wish and AliExpress in a move that can be seen as a boost for brand owners.
Denmark’s latest legislation supplements Regulation 2019/1020 on market surveillance and compliance of products. Online retailers with operations in Denmark face severe penalties if they fail to follow the product safety rules set forth by the regulation, which includes blocking access to their platform.
The public authorities monitor product safety and determine whether goods are within the restrictions of the law. The law states that a public authority can demand that the online retailer change or take down content referring to a product which falls outside of the product safety rules (Article 17). Importantly, such demand is irrespective of whether the platform offers the product for sale or not. The demand targets the platform, but not necessarily the product seller.
An online platform may be blocked if a demand made in accordance with Article 17 is not actioned or the platform has repeatedly sold or provided for sale products that constitute a serious risk (Article 18). A hearing must be held, with the courts ultimately deciding whether access to a platform can be blocked.
However, the first course of action will be to impose fines, and the new law provides for larger penalties than in previous practice. It also allows the authorities to carry out controls anonymously, making it easier for them to expose the sale of dangerous goods. Previously, the authorities had to announce whenever they would carry out controls.
Impact on trademark owners
The law is definitely a boost for brand owners, as they can use it to alert the public authorities whenever they see counterfeit goods that involve product safety risks.
E-commerce platforms each have their own takedown procedures and, in some cases, can be slow to action requests, thus making this legislation an invaluable tool in brand owners’ overall strategy for tackling harmful counterfeit goods.
If a product sold online is dangerous and the online platform’s response is unreasonable or too slow, brand owners are advised to keep in their toolbox the ability to contact the public authorities and request them to make an immediate takedown.
While the procedure with the public authorities remains to be determined, it will have to be a quick process if the purpose of the law is to be fulfilled. Counterfeit goods can be detrimental to a brand’s market share if swift action to remove the products is not taken.
The move is part of a bigger undertaking in Denmark to crack down on the sale of dangerous products. Online retailers will clearly need to do more to stop the sale of dangerous products on their platforms, and failure to take the necessary actions will result in serious consequences.
This article first appeared on WTR Daily, part of World Trademark Review, in July 2020. For further information, please go to www.worldtrademarkreview.com.