With Great Power Comes Little Responsibility: The Role of Online Payment Service Providers with regards to Websites Selling Counterfeit Goods
Electronic Commerce, or e-commerce, as the name suggests, is essentially the electronic version of commerce. Retail e-commerce in Canada totalled $15.3 billion in 2010, which was double the 2005 level.1 This increase in online business activity would suggest a corresponding increase in online illegitimate business activity. The sale of counterfeit goods in places like flea markets and malls has now moved into the online world with flashy websites and easy-to-access payment services. If websites devoted to the sale of counterfeit goods are becoming more prevalent with the ease of e-commerce, would this correspond to trademark owners’ ease in enforcing their rights online? One aspect in which an e-commerce website is different than a bricks-andmortar retail store is that the website must be able to accept electronic payments; cash-only transactions are not possible.2 These electronic payments are conducted through online payment networks administered by companies such as Visa and MasterCard. Being the backbone of e-commerce, it is vital that Merchants have access to these online payment networks. If Visa or MasterCard were to cut off their services to a certain website, the ability of that website to engage in e-commerce would, effectively, be removed. This would seem to give much power to such companies, but what about their obligations? Should there be a duty on such companies that provide electronic payment services to cease or withhold those services to websites that are dedicated to