The OEM has been waging a campaign against small UK companies, with a series of objections and takedowns on e-commerce platforms such as eBay and Amazon, leaving beleaguered businesses little in the way of self-defence.
Epson enjoys Verified Rights-Owner status on eBay UK (VeRO), and has thus been able to use this to remove any third-party cartridge listings that it feels may infringe its patents. It’s a similar story with Amazon UK, where the OEM uses the platform’s reporting notice system, simply informing the websites of any offending listing, providing a patent number and alleging infringement of that patent. As the Open Rights Group writes, “listings are always removed, and affected sellers cannot prevent, challenge, or appeal removal.”
The ORG goes on to call this system “one-sided” and “fundamentally unfair,” asserting that should Epson have a genuine belief that patent infringement has been committed, it should be willing to challenge the accused in court, rather than employing such a “blunt tool,” which it “can brazenly use to circumvent fair judicial process.”
The ORG further claims that Epson’s primary focus for enforcing its IP rights should be the manufacturers and importers of compatible cartridges, not the resellers, who are referred to as “the least important part of the chain.” They are targeted, it is suggested, as they have “the disadvantage of being visible,” becoming the easiest target for the takedown policies of websites like eBay and Amazon.
The damaging aspect of this is being most keenly felt by small businesses in the UK, who are forced to either lay off employees or shut down entirely, as a result of such “ruthless patent-trolling.” Actions like those of Epson are “damaging UK entrepreneurship, competition, and independent business activity,” the ORG claims.
However, the ORG also concedes that this is a situation not entirely of Epson’s own making, with the foundations originating in the EU E-Commerce Directive of 2000. This directive aimed to give consumers certainty online, and therefore made the web platforms themselves responsible for any illegal content on their site, once its illegality had been made aware to them. This led to nervous platforms implementing blanket takedown procedures, giving complainant rights-holders “swift and absolute protection”, but leaving nothing in place for those accused of illegality.
According to the ORG, “subsequent judgments of the Court of Justice of the European Union (CJEU) and EU digital strategies have increasingly sought to make online platforms responsible for their content and activity. This has served to consolidate the platforms’ hands-off approach when it comes to rights-holders asserting infringement.”
Sellers affected by actions like Epson’s have no opportunity to respond, counter-notice or object. With no ability to assert their legal right to advertise the compatible cartridges, they have no recourse against the removal of their listings – and without the financial power to fight such a battle in court, it leaves many smaller businesses virtually defenceless.
It’s why the ORG is calling for a UK legislative mechanism to be put in place, allowing traders to assert their rights to continue trading. So far, most of the policy attention concerning the regulation of online platforms has focussed on increasing responsibility for illegal content, but the approach to this so far is having “a significant negative effect on UK enterprises – both in terms of business viability, and in terms of free speech.”
The current system is described by the ORG as “often arbitrary and unfair,” and so the group is recommending a mechanism allowing online sellers to counter-notice, which would allow individuals a chance to offer “a direct defence to the removal of their post.” The group concedes this may be an “imperfect system,” but it is a necessary one to avoid the sweeping approach taken by OEMs like Epson, and elsewhere, Canon, in recent months, and to go some way to levelling out the playing field.
“If Epson doesn’t then dare take sellers to court, for fear their patent might be overruled – well, that’s their choice,” the ORG concludes.
