SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

SYMBIOSIS LAW SCHOOL, PUNE

Reaccredited by NAAC with ‘A’ Grade

LL.M DISSERTATION SYNOPSIS

“INFRINGEMENTS RELATED TO INTELLECTUAL PROPERTY RIGHTS

ON THE DARK-WEB”

Under the Guidance

PROF. DR. (Mrs.) RUPAL RAUTDESAI

And

PROF. (Mr.) UJWAL NANDEKAR

Submitted by

Shauryanker Kaushik

PRN- 20010143059

(2020-2021)

Submitted in the partial fulfillment of the requirement for the

Award of LL.M in “Innovation, Technology and Intellectual Property

Law”
 SYNOPSIS
TITLE: INFRINGEMENTS RELATED TO INTELLECTUAL PROPERTY RIGHTS
ON DARK-WEB
- SHAURYANKER KAUSHIK
- 20010143059

INTRODUCTION
“Like all illicit trades in goods and services, the enterprise of producing and selling
counterfeit goods exists because there is a consumer demand,”
- Jeff Rojek1
The web consists of three different layers namely deep web, dark web and the surface web.
Surface web falls under that four percent of the internet which can be accessed or can be
easily indexed by normal search engines such as Yahoo, Google and Bing. Deep web on the
other hand is that layer of the internet which cannot be indexed by normal search engines,
therefore is hidden. Whereas, the Dark web is that portion of the deep web which is
intentionally hidden and can only be accessed by specialized software and routers. The dark
web is inaccessible via normal browsers and therefore cannot be indexed by search engines,
making it completely anonymous.
Tor, The Onion Router, is used to navigate the Dark Web. Prior to the Dark Web's inception
in 2004, the United States Naval Research Laboratory (USNR Lab) employed and invented
Tor as a way of transmitting intelligence via the internet in complete anonymity and secret.
The USNR Lab was able to achieve perfect anonymity amongst its users by utilizing several
virtual IP addresses that mask the users' real IP addresses. With emergence of world wide
web, the illicit trade of counterfeit goods have shifted from conventional methods to that of
internet. These counterfeit products are smuggled through three mediums on internet
namely:
 Individuals selling on discussion forums.
 Online websites on surface web.
 Online dark web sites / marketplaces.
Counterfeiting and Piracy are the major crimes related to IPR. The organised crime groups
commonly known as OCG’s are involved in such violations. Crimes related to IPR bring
substantial harm to consumer health and safety. IPR infringing products/merchandise
distributed on the Darknet contain counterfeit and pirated good. There is no distinct category

1
Jeff Rojek, Director of the A-CAPP Center
 for such items on illegal markets and they are usually placed in combination with legitimate
merchandise, under various (sub) categories, such as shoes, clothes, medicines, electronics,
television, jewelry, pharma, software or others. As per the report submitted by EUROPOL,
counterfeit items alone make for between 1.5 and 2.5 percent of listings on Darknet
marketplaces.2
In the recent years, there is a major shift from the surface web to dark web because of the
emergence of crypto-markets and cryptocurrency. Firstly, one of the major reasons why
dark- net marketplaces are flourishing is because of the anonymity of cryptocurrency.
As per the report of Chainalysis, a leading crypto-payment analytic firm, there was a rise in
transactions of bitcoins on the dark-web market to $872 million in 2018 compared to $250
million in the year 2012.3. Secondly, the communication between and within these
organizations is carried out using encrypted internet facilities to avoid wiretapping. TOR's
browser technology is one of the largest anonymizing network having 2 million and above
active users who are directly associated with it. An anonymous connection is initiated
between the sender and the receiver via the servers associated to Tor network, this server
then connects to one server and so on creating a multiple server connections chain with no
intermediate server. Thirdly, The dark web marketplaces are booming globally and has
proven to be very profitable for the dealers. Offenders generally seem to be very aware of
and cautious about taking risks while operating online.
The most common products infringing the designs of the “high-end designers” of dark-web
are usually clothing items and accessories (e.g., bags, sunglasses, pens, jewellery and
watches). As per the EUROPOL, the major boost in the online trade of products infringing
IPR, is very closely related to the increase in use of parcel and postal services in the import
and distribution of such infringing goods.4.
Dark-web servers as a medium of transferring such data/design/IP infringing products as
there are chances on maintaining anonymity. Material that violates intellectual property
rights are being progressively marketed on both the surface web and the Darknet. Vendors
are profit-driven and will seek for a massive online consumer.

2
Europol’s Internet Organised Crime Threat Assessment (iOCTA) 2017
3
The Truth about the Dark Web, Aditi Kumar and Eric Rosenbach, FINANCE & DEVELOPMENT,
SEPTEMBER 2019, VOL. 56, NO. 3
4
Intellectual Property Crimes in the Dark Web, https://resources.infosecinstitute.com/topic/intellectual-property-
crimes-dark-web/
 LITERATURE REVIEW
The object of the proposed research work is to explore the INFRINGEMENTS RELATED
TO INTELLECTUAL PROPERTY RIGHTS ON DARK-WEB. It is imperative to
acknowledge that the existing literature has tremendously helped the researcher in developing
an understanding of the technical concepts surrounding the unfortunate practice, thereby
making it pertinent to review the recent as well as relevant body of knowledge.
The author, Sophia Dastagir Vogt5, in “The Digital Underworld : Combating Crime On The
Dark Web in the Modern Era” has dealt with the laws relating to privacy in U.S.A and on
countering international crime on dark web. The author has discussed how the courts have
applied the doctrine of third party on countering illicit activities on dark-web. The doctrine
can be explained as “a person has no legitimate expectation of privacy in information when he
voluntarily turns over to third parties”. Apart from expectation of privacy, the author deals
with conflicts of law and has suggested closer cooperation with foreign law enforcement
agencies for overcoming jurisdictional obstacles in combating cybercrimes in the dark web.
The author, Dominick Romeo6, in “Hidden Threat: The Dark Web Surrounding Cyber
Security” has deliberated on how dark-web poses a serious threat to national and domestic
cyber security. In his research he has posed various questions about the state of cyber security
and gave suggestions regarding collaboration of federal government and private enterprise to
combat this threat.
According to a research published by World Trademark Review, counterfeiting is a
significant concern for some of the world's largest luxury fashion and clothing businesses.
These counterfeit items are infesting the market and wreaking havoc on a variety of company
metrics, including the bottom line, reputation, and consumer satisfaction. While putting a
monetary value on counterfeit goods is nearly impossible, the scale of the problem becomes
apparent when figures from the Organization for Economic Cooperation and Development
and an EU Intellectual Property Office study indicate that counterfeit goods account for 2.5
percent of international trade, or approximately £270 billion.7

5
Sophia Dastagir Vogt, The Digital Underworld: Combating Crime on the Dark Web in the Modern Era, 15
Santa Clara J. Int'l L. 104, 125 (2017)
6
A. Dominick Romeo, Hidden Threat: The Dark Web Surrounding Cyber Security, 43 N. Ky. L. Rev. 73, 86
(2016)
7
Understanding the Deep and Dark Web: mitigating risk and protecting your brand,
https://www.worldtrademarkreview.com/anti-counterfeiting/understanding-deep-and-dark-web-mitigating-risk-
and-protecting-your-brand , Accessed on 15th December 2020
In a comprehensive resource handbook published by EUROPOL, it was suggested that piracy
and counterfeiting are the major IP crimes that take place on the dark-web. Organized Crime
Groups, commonly known as OGCs have major involvement in violation of Intellectual
Property Rights and dark-web has a major role to play in it. The most frequent items
accessible on darknets that violate intellectual property rights include clothing, textiles, and
accessories, as well as jewellery and knockoff watches.8

The authors, Beshiri, A.S. &Susuri,9 A., in their paper “Dark Web And Its Impact In Online
Anonymity And Privacy: A Critical Analysis And Review” confirmed that the Dark-web is
commonly used by the governmental and intelligence agencies worldwide. They further stated
as it provides anonymity it can be used to shield military command and control systems.

The authors, Mwila and Phiri,10in their paper “The Deep Web Experiment Findings” suggests
that only 4% of Internet material is available to the general public, while the remaining 96% is
hidden behind the Deep Web. The primary reason Google does not index the 96 percent is
that the businesses linked with the Deep Web are either illegal or detrimental to the public at
large.

Tu Kevin V11 in his work explored that the United States of America and other nations are
major fashion and clothing manufacturing hubs. The development of renowned fashion
designers and the fame associated with them has resulted in the rise of "style piracy", in
which a designer's original and creative work is stolen by so-called "style pirates." Copying
typically occurs in a variety of ways, including passing counterfeit copies off as the genuine
article or developing 'designer-inspired' items that may generate revenue for the pirate by
giving the illusion of originality. The United States' legal system provides patchwork
protection against counterfeit and copycat designs. In the United States, the Copyright Act
is a total failure to protect since it is confined to non-utilitarian designs. Thus, the inherent
utility of apparel has historically acted as a barrier to copyright protection, and as a result of
this shortcoming, the majority of designers have shifted to trademark law secondary meaning
in trademarks as a means of circumventing copyright requirements in order to defend against

8
Intellectual Property Crimes in the Dark Web, https://resources.infosecinstitute.com/topic/intellectual-property-
crimes-dark-web/, Accessed on 17th December 2020
9
Beshiri, A.S. &Susuri, A., Dark Web and its impact in online anonymity and privacy: A critical analysis and
review. Journal of Computer and Communications, 7, 30-43. (2019).
10
Mwila, K., & Phiri, J., (2019). The Deep Web. Experiment Findings.,
https://www.researchgate.net/publication/335336010_
11
Tu Kevin V, Counterfeit fashion: The interplay between copyright and trademark law in original fashion
designs and designer knockoffs, Texas Intellectual Property Law Journal, 18 (3) (2010) 419-50
style pirates and achieve some level of design protection. The interaction of copyright and
trademark law in this area demonstrates that neither copyright nor trademark law provides
adequate protection for fashion designers' original designs, highlighting the need for a more
comprehensive strategy for protecting creative but utilitarian works such as fashion designs.
Tu Kevin V believes that the eligibility standards for copyright protection should be
expanded to include the unique and creative components of fashion designs, so that copyright
law, rather than trademark law, becomes the dominant form of design protection.
Undertaking a literature review on this topic was difficult due to the scarcity of information
and research on the subject due to its 'secretive' and non-identifying nature.

STATEMENT OF PROBLEM
The dark web is that portion of the internet which requires certain special software to access.
Once the user has accessed it, websites and services provided therein can be accessed in a
similar way as they can be in the normal web.. The dark web has played a part in the larger
process of selling counterfeit products and the intellectual property rights are being infringed
via this platform. Since the dark web enables the user to be completely anonymous, it is a
place of choice for other activities ranging from whistle-blowers contacting journalists to go
public, all the way to paedophile groups, criminals and even terrorists to keep their business
secret. Despite the United States government's closure of the Silk Road and its versions, the
very next generation of Darknet markets are prospering. While they're best known for their
brisk trade in illicit drugs, weapons, and pornography, they're also brimming with exquisite
high-end counterfeits of various luxury brands (if you know where to look), resulting in
significant losses for these brands, which invest heavily in their business portfolios. As the
priorities of investigating higher forms of criminal activities on the dark web, it hasn’t been
explored by academicians and lawful authorities. There are certain cyber criminals who are
working “anonymously” on the dark-web. Some of the criminal activities are carried out and
these transactions are carried out via cryptocurrency (commonly through Bitcoins). The
literature on the dark web is very limited. Since there is dearth of research in the field of
counterfeit products which bear IP sold on dark web and that lead to the problem of IP
crimes, the researcher has taken up the study. The importance of this research is to primarily
explore the dark web and explain the ambit of cyber laws in India and worldwide in
combating the problem of abuse of anonymity and intellectual property crimes.
 RESEARCH OBJECTIVES
1. To study the dark-web and regulations relating to it
2. To explore the IP infringement activities on the dark-web and its impact on the rights of
IP holder
3. To examine the legal responses taken globally with respect to IP crimes on the dark-web.
4. To ascertain the vastness of the trade related to counterfeits on the dark -web and if it
affects the business of well-known brands
5. To critically analyse the IP and IT Laws of India with respect to being able to curb the
problem of sale of counterfeit products on the dark-web that are infringing IP.

RESEARCH QUESTION
1. What is dark-web and how it is regulated?
2. How does the IP infringing activities on dark-web affect the rights of the IP holder?
3. What are the adequate legal responses taken globally with respect to crimes related to
intellectual property on the dark web?
4. How vast is the trade related to counterfeits on the dark web and how is it affecting the
business of well-known brands?
5. Whether the IP and IT laws in India are capable of addressing the problem of sale of
counterfeit products on the dark-web which are infringing IP?

RESEARCH METHODOLOGY

The research methodology adopted for the research is both empirical and doctrinal research.
The doctrinal research includes an analysis of the resources available through the access to e-
library along with various online legal databases. The doctrinal research also has helped to
attain all around perception of the existing laws and how they have progressed. . The methods
of research opted are both analytical and descriptive. In addition to this, the researcher has
undertaken empirical research by way of a google survey for understanding the awareness of
IP crimes and functionality of Dark-web amongst the general public.

Footnote Format: Bluebook — The Uniform System of Citation (19th ed.)

 SCOPE AND LIMITATION
There are a number of pressing issues surrounding dark web such as sale of illicit drugs, arms
and ammunitions, personal data and the likes. However, one of the neglected areas is that of
sale of knock-off watches and first copy handbags that persist in our country. Dark web
caught the attention of the researcher as it plays a part in the process of selling counterfeit
products and intellectual property infringement, but has not been researched enough. The
researcher intends to prove his hypothesis by reviewing various relevant literatures. The scope
of this study is to know the inter-relationship between physical functioning of these
businesses and the wide- spread availability of high-end knock offs of various luxury and
mainstream brands and also the leak of data bases containing personal information of
individuals on the dark-web. The limitation of this study lies in the fact that the literature
available on IP crimes on Dark-web is very limited. Further, the researcher had no access to
physical libraries due to pandemic. In general, there is a scarcity of study devoted to the dark
web. This might be owing to the topic's restricted character, which makes data collection
difficult.

CHAPTERISATION
The purpose of Chapter 1 of this research is to provide an introduction to the topic as well
as an understanding of the Researcher's reasoning for selecting and writing about this issue.
This chapter also includes a review and analysis of the existing literature, the research
objectives, the research questions, the technique used by the researcher to obtain insights
into the questions, the scope of the study, and its limits.
Chapter 2 of this study reviews and analyses the history and origin of the darkweb as well as
the conceptual requirements for an effective understanding of how trademark and copyright
infringement takes place over the dark-web.
Chapter 3 of this research focuses on the impact of illicit digital material distribution on the
dark web. Additionally, it examines how these technologies evade or bypass technological
protective measures.
Chapter 4 of this study highlights how the various types of trademark infringement have
evolved in response to technological developments..
In Chapter 5, the qualitative data collected through the questionnaire circulated via G-form
will be analysed to trace the awareness with respect to dark-web and related illegal activities
amongst the respondents.
 Chapter 6 of this study discusses the Indian legal regime along with the international
cooperation with respect to dark-web. Also, this chapter provides a summary of the
suggestions as well as a conclusion.

CONCLUSION
With the emergence of dark web the concept of black market thrived out of the local
territories of a nation and expanded on a global scale. The problems related to dark web are
growing both in terms of increasing number of criminals and the crime thereto. Secondly,
cryptocurrencies have emerged as a new source of financial transactions and are now at a
value more than ever. Market administrators are well aware how to best protect their activities
from law enforcement agencies while these agencies still lack the expertise as to how to
investigate and clamp down these activities. Users always find a way to get any goods or
services on the dark web, not depending on their location, the illegal business on the dark web
has increased so exponentially that national borders are blurred and legislations rendered
useless. Though law enforcement operations in certain countries have successfully shut down
certain websites, there were very limited number of arrests made and counterfeit products
seized. This suggests that the operations carried out by law enforcement agencies have a very
limited impact, and even if they do in some cases, they are not as publicized as they should
be. This makes people very unaware of their actions online, dark web or not.
While the development of enhanced dark web monitoring is a boon for rights holders, the
recent law enforcement crackdowns on dark web markets have made the most important
strides forward. The global police operation that resulted in the shutdown of AlphaBay and
the elimination of more than 350,000 unlawful listings was unparalleled in its scope and scope
of operations. Hansa, another large marketplace in the Netherlands, was shut down at the
same time by Dutch authorities. It was revealed that law enforcement had been in charge of
Hansa for several weeks before it was shut down, showing that merchants, rather than merely
marketplace operators, are being targeted by law authorities.
However, despite the fact that these police activities are apparently beneficial to brand
owners, research shows that care is still required. "Searching for unknown places: law
enforcement jurisdiction on the dark web," according to one study, "may result in foreign
cyber-exfiltration operations that may violate the sovereignty of other countries," because of
the hacking tactics employed by law enforcement in these attempts. The hazards connected
with such tactics are
enormous,” says the report, which also emphasizes the need to adapt current laws to meet the
challenge of dark web enforcement in the digital age.
It will only be revealed in time whether special legislation will be created to assist in
combating criminal activity on the dark web. In the meanwhile, concrete changes are being
made — but it is possible that they may give little respite to overburdened and under-funded
legal departments in the short term. As is always the case, it all boils down to prioritization.
On the black web, there is no sign that the brand-related difficulties will go away any time
soon, and in fact, they will only become worse with time. The dark web will continue to
expand and evolve as a result of the rising number of security issues that have been raised.
When compared to today's darknet, it is anticipated that the darknet would look drastically
different in five years. While working with limited resources, intellectual property
practitioners must make difficult decisions about where to spend their money and what should
take precedence in their work. Every week, hundreds of unidentified, untagged, and
unreported data breaches occur at organizations of all kinds. The magnitude of the problem is
mind-boggling. Individuals will continue to trade in unlawful items and access stolen
information on the darknet, and businesses will be forced to deal with the consequences of
this at some time.
The sudden emergence of technology and innovation, the illicit activities on the dark web
have increased to a scale that in order to deal with it, nations around the world have to come
together to form policies that are globally applicable and strike a balance between protecting
the anonymity of the user and enforcing rigid laws on actual criminals who are hiding behind
the veil of internet.
RECOMMENDATIONS
Creating policies that would address the Dark Web needs an understanding of the benefits and
disadvantages of maintaining anonymity of an open internet. Sweeping and arbitrary
legislation has the potential to breach the rights of citizens and could be extremely hard to
enforce. On the other hand, not addressing the dark web will allow illegal activity to exist
unregulated. Some recommendations in terms of legislative responses that could be taken into
consideration while thinking about policies regarding crimes on the dark web:
 Authorities should be empowered to investigate and act against offending
websites from their countries. They should have training to identify and take
action against offenders online, even on the dark web.
 Internet Service Providers (ISPs) should be obligated to fully cooperate with
law enforcement agencies and to maintain a record of IP addresses.
 Enforcement agencies should focus on monitoring the supply chains of these
counterfeit products that run through the dark web. Since the internet helps
vendors and sellers on the dark web be anonymous, law enforcement should
identify the areas of the business which cannot be possibly done without
leaving a trace, i.e., the supply chains of these goods and break down where
the orders are originally being placed from and by whom. Further, brand
enforcement experts could be hired or there are agencies such as NASCAP
(National Association to Stop Counterfeiting and Piracy) which can focus on
monitoring the supply chains of these counterfeit products and help the IPR
owner to track IPR infringements across all places including darkweb.
 Even with the whole business being online, there remains a physical
component to Internet trafficking – production and distribution stage, which
should be focused on by law enforcement agencies.
 Online monitoring of suspicious websites is the new approach. Since it is a fact
that the Cyber-cells of various law enforcement agencies is keeping tabs of
people on the internet, it can use its data mining tools in order to identify
common behavior among people involved in illegal commerce on the dark
web.
 Law enforcement must be equipped with professional expertise to strengthen
their capacity to use the internet technology as a tool. A lot of people
employed in law enforcement are not very experienced with high level
technologies and data mining tools. Therefore, proper training and
sensitization workshops of these law enforcement should be conducted so that
to make the them aware about issues in hand.
 Checks on parcel post offices should be professionalized to scan the shipments
in order to greatly reduce the odds of successfully shipping these illicit goods
by mail. The pharmacists and other experts in the medical field can assist the
post office staff when comes to gaining more knowledge on how to identify
these substances. Parcels can be routed through properly equipped customs
entry points.
 Law enforcement can do several covert operations like infiltrating online
markets under disguise by establishing an agent as a trustworthy buyer and
arranging for a face-to-face meeting or intercepting any point of contact to bust
the people involved in the chain of supply. Also, one approach can be the
actual
 brand owners collect some market intelligence and then report and file FIR and
then involve police to do this kind of covert operations to nab the culprits
 Another method that could be used is publicizing the shutting of such websites,
some websites are traced back to the owner but are not adequately reported in
the mainstream media, with the exception of some case such as the Silk Road
case. But the more these reports are publicized, the more anyone will be aware
of the consequences of their actions on the dark-web.