1 December 2017Trademarks

Diving down into the dark web

Counterfeits on the internet have been a major problem for rights holders since the birth of internet shopping and its subsequent global widespread use.

However, what is known as ‘the dark web’ is providing more opportunities for counterfeiters and proving increasingly difficult to police.

The internet is largely made up of two layers: the surface web and the deep web. Every website available through search engines makes up what is called the surface web.

However, statistics show that the surface web makes up just 4% of the internet as a whole, while the remainder is the deep web.

The deep web can include legitimate pages such as intranets, content behind firewalls and even content on social media pages that is password-protected.

For example, a search of a website using Google may show millions of results, but this would only relate to the surface web, so the searcher would not be able to access any intranets or internal pages, as this would be on the deep web.

Unless you have access to these deep web pages, you are only scratching the surface of what is actually out there.

The dark web is part of the deep web, but through specific software users can enter an anonymous world where purchases are difficult to track. There is even an anonymous currency, bitcoin, which is untraceable.

“The dark web is rather more sinister in that it affords complete anonymity to browsers and to those who upload things onto it. It can be used for some unpleasant and illegal products such as drugs, weapons, sexual items, etc,” explains Bill Lister, partner at Fieldfisher.

“It is also used by criminals who misuse the trademarks of respectable organisations such as banks and financial institutions to persuade you to pass over confidential information such as passwords and account numbers and even personal details.”

Certain dark web browsers work in a similar fashion to everyday browsers such as Google Chrome, Internet Explorer and Mozilla Firefox. However, they leave no trace by masking the identity of who is browsing.

Few barriers

With anonymous listings and browsing available to them, what is to stop counterfeiters setting up a page on the dark web and selling goods from an untraceable page, thus eliminating the need to use online marketplaces such as eBay and Amazon?

“The most dangerous counterfeit goods are recreational drugs and pharmaceuticals; they may look and taste like the real thing but can kill you,” says Lister.

“The banks are taking the threat very seriously. They want to stamp out phishing scams which cost them a fortune in reimbursements every year, let alone reputational damage”.

Phishing scams involve fraudsters pretending to be from a reputable company to extract information which can then be used to access bank accounts.

In the UK, the banks reimburse those who are affected. A study by IT consultancy firm IT governance showed that in 2016, over 1.2 million companies alone were affected at a cost of nearly £6 billion ($7.95 billion).

A spokesperson from the trade association for UK banks, UK Finance, stated to WIPR that protecting customers is a “key priority for banks, which employ a variety of measures to prevent fraudsters impersonating their brands online”.

The spokesperson continued: “This includes internal social media monitoring teams and third party security companies that monitor the internet, including the dark web, for fraudulent activity.”

In November 2016, to counter the growing threat, US Immigration and Customs Enforcement initiated a joint global operation targeting vendors on the dark web and teamed up with the Five Eyes Law Enforcement Group (Australia, Canada, New Zealand, the UK and the US) and members of Europol.

“Law enforcement agencies around the world are seeing counterfeit drugs and other counterfeit items, dangerous and deadly synthetic drugs like Fentanyl, deadly toxins as well as fake and stolen identities,” said a statement when the operation was launched.

Over the next few months, there were several reports of sites being taken down and arrest warrants issued. However, the anonymity of the dark web means it is difficult to enforce injunctions to prevent sites reappearing.

Lister adds: “That is an endemic problem with these sites.”

In July, Europol delivered what it called a “massive blow to criminal dark web activities” when a joint operation shut down the infrastructure of an underground criminal economy responsible for the trading of over 350,000 illicit commodities including drugs, firearms and cybercrime malware.

At the time, European Commissioner for migration, home affairs and citizenship, Dimitris Avramopoulos, said the dark web “is growing into a haven of rampant criminality”.

While the anonymity of the dark web is making things extremely difficult with regard to enforcing IP rights, it is not completely impossible.

“International brand owners often team up with highly sophisticated investigators. Many such investigation companies have ex-security services professionals working with them and can find ways not open or invisible to the likes of you and me,” adds Lister.

“It’s not as though you see a fake T-shirt and make a test purchase, it is not that easy. You have to nail how to get inside as the URLs are not available openly.”

He adds that enforcement is largely left to larger companies, as they are generally the only ones which can realistically do it as the cost is quite prohibitive and deep pockets are required.

“Access to the dark web is often by invitation only in many ways and you can’t find the sites. It thrives on anonymity and there is no way of searching for and identifying sellers or purchasers without highly sophisticated help.”

Combating fraudsters

Michelle Mancino Marsh, partner at Arent Fox, echoes these views, saying that law enforcement agencies worldwide are working to combat infringers on the dark web but they are “in need of assistance from brand owners”.

“If infringing goods or other illegal activities are detected on the dark web, it is best to contact and coordinate with law enforcement. Without the right experience and tools it may be fruitless to go after infringers on your own.

“For example, attempting standard enforcement procedures such as sending cease and desist letters would be futile. Once an infringer has been identified, it would be prudent to involve law enforcement for further action.”

One of the biggest browsers for the dark web is Tor, which is free to all and enables anonymous browsing and communication.

Once on the browser, one can access normal pages as usual, but some of the more potentially dangerous sites are by invitation only.

Many sites such as BBCiPlayer don’t allow you to watch videos using Tor alone, and no search results are possible from Google.

The first study into the dark web in 2016 by researchers at King’s College London found that Tor holds an “overwhelming amount” of illicit and illegal content.

It found that 57% of the sites designed for Tor—known as .onion sites—facilitate criminal activity, including drugs, illicit finance, and extreme pornography.

“We expected something along these lines,” said Thomas Rid, professor of security studies at King’s College London and co-author of the study. “Previous studies have established that it’s a pretty nasty place.”

One may be forgiven for thinking that given the complexity and cost of investigations into the dark web, there may be other more pressing concerns with regard to brand protection, and the dark web simply may not be top of the priority list.

However, Marsh says: “Trademark holders should be paying closer attention to the  dark web.

“Companies must be vigilant in monitoring and tracking down conduct that can harm their brands, their retailer relationships and their bottom line.

“First, though, a company needs to assess its risk level and how attractive their brand or products may be on the dark web. For some companies, such as luxury goods makers, that assessment may be easy but for others, it may not be so obvious.

“For example, things such as car parts, semiconductors and other high-tech items may be highly sought after on the dark web.”

With large companies and worldwide enforcement agencies spending large sums on enforcement, criminals may have to go further into the dark web to avoid detection, and be wary of who is ‘invited’ in.

But Lister concludes: “The problem with the dark web for brand owners is that it represents the ‘unknown unknown’—they do not and cannot know the full extent of it. If they can’t trace it they can’t police it.

“This is a big deal for brand owners. The trouble is, at the moment the risk is increasing—as investigators become more sophisticated in tracking down dark sites, so the sites themselves become more sophisticated in cloaking themselves. The only positive is that the deeper they go, the more difficult it is for their market to 
find them.”

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