Fashion brands have long relied on third-parties to police trademark infringement across marketplaces and social media. AI is making that work faster and more expansive, enabling enforcement providers to monitor vast numbers of listings, identify suspected violations, and facilitate takedown requests on behalf of their clients. For brands trying to keep counterfeit merchandise out of circulation, the appeal is obvious. But the growing use of AI in enforcement also presents a problem for the legitimate resale market: Infringement complaints may be generated faster than they can be meaningfully reviewed.
Accounts from resale industry sources, complaints filed with the Better Business Bureau, and reviews posted on Trustpilot suggest that some sellers of authentic merchandise are already feeling the consequences. Industry sources tell TFL that listings for genuine luxury goods, including Hermès handbags, have been removed from Meta-owned platforms following reports by third-party brand protection companies. Other sellers describe repeated infringement complaints, difficulty reaching the companies responsible, and delays in getting listings for authentic goods restored.
Taken together, these accounts point to potential weaknesses in AI-powered brand enforcement: the speed with which suspected infringement can be identified and flagged may not be matched by the scrutiny applied to complaints or the processes available to sellers seeking to challenge them.
The Risks of Automated Enforcement
Intellectual property enforcement companies have long used technology to identify potentially infringing merchandise online. AI enables providers to analyze larger volumes of product images, pricing, seller information, and other data more quickly, with suspected violations potentially classified and reported en masse with varying degrees of human involvement.
The problem is that information available in a product listing does not necessarily establish trademark infringement. A steep discount or the absence of an authorized distribution relationship may attract scrutiny, but neither alone establishes infringement. Trademark owners generally cannot prevent the resale of genuine goods, and information relevant to determining whether a sale is infringing or whether certain exceptions apply may not be apparent from a listing.
As a result, systems assessing listings based on limited information may flag lawful resale activity as suspected infringement. Complaints submitted to Instagram, Amazon, eBay, and other platforms can result in listings being removed or sellers’ accounts restricted without a judicial determination of infringement. And challenging those complaints can be more complicated than submitting them, leaving sellers to navigate platform dispute procedures, provide evidence that their merchandise is authentic, and seek retractions from enforcement providers whose reports prompted the removals.
Public complaints involving prominent brand protection providers illustrate these difficulties. In Better Business Bureau filings and Trustpilot reviews, sellers describe infringement reports targeting merchandise that they maintain is authentic, including sneakers, watches, and apparel. Some report providing purchase records, supplier documentation, or manufacturer confirmation of authenticity, yet encountering delays in securing retractions or substantive responses. Others describe repeated enforcement actions against the same sellers or merchandise, delays in securing retractions, and difficulties obtaining substantive responses, suggesting an aggressive – and increasingly AI-powered – approach to enforcement that may favor rights holders at the expense of legitimate resellers.
THE IMPLICATIONS: For fashion and luxury brands, the incentives behind sophisticated enforcement are clear, particularly given the scale and sophistication of the market for infringing goods. Third-party providers enable brands to monitor online activity across markets and platforms that would be difficult to police manually. But overly broad or erroneous complaints can disrupt legitimate resale activity, costing sellers sales, visibility, or access to their accounts. And there is a difference between identifying a listing that warrants further investigation and establishing sufficient grounds to report it as infringing.
As enforcement providers make greater use of AI, the challenge for brands is ensuring that the speed and scale of enforcement do not come at the expense of accuracy, meaningful human review, and effective procedures for correcting errors.
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