Notorious platform Wish.com loses lawsuit against REACT after refusal to disclose seller info

On paper Wish.com does not encourage IP fraud, and it even has the following clause in its Terms of Use:

5.6 When accessing or using the Services, you agree not to: (…)Infringe or violate the intellectual property rights or any other rights of anyone else (…)

And in its Privacy Policy it says:

5.7 Legal Requirements, Protection of Wish and Others

We reserve the right to access, read, preserve, and disclose any information that we in good faith believe is necessary to comply with law or court order; enforce or apply our Terms of Use and other agreements; or protect the rights, property, or safety of ContextLogic, our employees, our users, or others.

On behalf of its Members, REACT has asked Wish.com to disclose personal user information from sellers of counterfeit products. Wish.com uses a ‘real name authentication system’ to authenticate its users. This identity information is relevant for REACT to use in its onward legal actions against the sellers of counterfeit products active on Wish.com. Wish.com was not cooperative and REACT was forced to go to Court. Wish.com recalcitrated, claiming the writ to be void and questioning the competence of the Court, and REACT’s position to initiate Court proceedings. All these protests were rejected by Amsterdam Court.

With reference to Lycos/Pessers (Dutch Supreme Court ECLI:NL:HR:2005:AU4019) the Court decided April 26^th, 2021 that Wish.com itself is acting unlawfully/wrongfully (onrechtmatig) by not disclosing the information asked for: on behalf of the brand owners there is a reasonable interest in obtaining the information, it is likely that there are no less far-reaching measures available to obtaining the requested information. Although Wish.com needs to take into account the privacy of its users, that is fairly limited according to Court, because the commercial users should be aware – based on the Terms of Use and Privacy Policy that Wish.com can take measures to limit intellectual property fraud. Also the Court ruled, that in the event an individual user of Wish.com is accused of IP infringement he can always defend himself. The Court held that weighing the interest of Wish.com’s to refusal to disclose the requested information from infringing users on the one hand, it cannot outweigh the interests of REACT and its members on the other hand to obtain that information, also in the light of Wish.com claim to limit piracy. The Court decided that REACT has a valid claim to obtain the requested information.

Wish.com was sentenced to provide REACT with a) the identifying payment details of the 13 advertisers / sellers mentioned, more precisely the account holder information from credit card (s), Paypal, EWallet, UMPAY, PayEco, Allpay, Payoneer, PingPong, Lianlian Pay and / or other electronic payment methods, and the bank account numbers with name of the bank and ascription of the bank account, which are used under through its Platform offered infringing products and additional services of the Platform, and b) ID card data, or identity data that ContextLogic collects from the advertisers with the Chinese nationality according to its own "Real name authentication system", namely the aforementioned identity information. All this as far as applicable to the respective user and exclusively insofar as these data serve to identify the users;

under a penalty of € 5,000 for each day that it fails to comply with the conviction with a maximum of € 100,000;

Also Wish.com was condemned in the cost of this litigation, € 667 in Court fees and € 25,000 attorney’s fees.

Conclusion

Platforms contributing to infringement are warned: the net is closing, they cannot hide behind privacy rules when a trademark owner is asking for information about a counterfeiter.