Shadowing Practice: Trademark enforcement: Dealing with infringement on social media and e-commerce platforms - Learn English Speaking with Video

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So moving on to our next session, I think a lot of rights holders will find one of their touchpoints when it comes to dealing with counterfeit goods are often on social media and e-commerce platforms.

So with that, we'll welcome Holly back to discuss how to deal with infringements online.

Hello again.

So even while I was sitting here I received an e-mail from a stakeholder telling me about issues she was having with infringing products online.

So I do want you to know that this is an issue that comes up quite a bit for our stakeholders.

If you do reach out to me or my teammates, I encourage you to provide as much detail as possible.

While we are not able to be your lawyers, we do have regular contact with many of the major online platforms and it really is really important.

So I can talk with them or we can talk with them.

They are very interested in engaging with us.

And you know, we represent everybody.

We represent the platforms.

We represent brand owners, a lot of them, they're brand owners too.

So we work for everyone and with everyone and but know that we are here to kind of be a bridge talking about trends and any issues you are experiencing.

So without further ado, we can get into the meat.

So of course, e-commerce platforms are amazing.

I don't know if anyone here has ordered from the e-commerce platform in the last week, but I sure have have packages coming in the mail I think today.

So it's been a tremendous change and just sort of how we engage with a lot of products online.

And now anyone regardless of where you are in the world can be an entrepreneur and sell online to a global audience.

Now of course, the downside here is that anyone can try to sell your products online to a global audience.

So this can be tricky.

It's sort of a a double edged sword, right?

There's both good things and bad with pretty much everything.

Now, I think one of the sort of starting principles that's important to keep in mind here is while we are quite global in our commerce now, trademark law is what we call territorial.

So the scope of your trademark rights in the United States ends with the borders of the United States.

Now you all just got a trademark in the United States.

This might be your first.

This could be a trademark that you originally got abroad or maybe or that you had abroad and are now bringing you to the United States.

But it could be the other way around.

So knowing where to register your trademarks can be a bit tricky.

And it's something that of course you know, if you are able to discuss with an attorney, that would be sort of the the best prudent recommendation.

Now of course, it generally makes sense to seek registration where you're doing business, assuming you are able to.

the United States is a what's called a first to use jurisdiction, which means that we do have provide rights for trademark owners regardless of whether they have a federal trademark registration, not the same rights.

We talked about that a bit in the first session about the supercharging of your trademark rights that you get as a federal registered trademark owner.

But in most other countries around the world, they are what's considered a first to file jurisdiction or jurisdictions.

And in those cases, your rights without a registered trademark are extremely limited.

And many countries also don't require you to prove use before registering your trademark.

So if you are interested in expanding your rights globally, it might make sense to go ahead and register your trademark abroad for places that you are looking to do business in the near future.

Or, depending on the trademark, it could also make sense to seek coverage in countries that are involved in your supply chain, including the country of manufacture or transit countries.

Certainly, if counterfeiting is already proving to be an issue in a particular jurisdiction, seeking protection in that country might make sense as well.

Again, this is a little bit of your experience might vary.

You should consult your healthcare practitioner, AKA, you know, in this case your attorney.

I'm just making a sort of those sort of cheeky things that they always say on the prescriptions.

You know, talk to your doctor in this case, talk to your attorney if you're able.

But these are some sort of general parameters to keep in mind about where you might want to register.

And I did just put a, a little blurb or a point up here about the Madrid Protocol.

I mean, that's really its own session.

We have some lovely people here from our trademarks group who could speak in detail for days about the Madrid Protocol.

But I just want to note that it's a legal treaty that many countries around the world have signed that streamlines the process for filing trademark registrations abroad.

So just know, but that exists and you can look further into that or ask them folks here the Question Time if you want more information on that.

And the reason I wanted to speak a little bit, territoriality is also sort of the flip side of here is the jurisdiction issue.

Now, if you are a seller abroad or if you're a platform that's based abroad and then you're selling to customers here in the United States, you are still subject to US jurisdiction.

So before we're talking about the scope of your trademark rights going out here, know that if someone is abroad and infringing your rights here, they are still subject to the jurisdiction of the US courts.

Now, it's going to vary a bit by court and the facts at issue, but generally US courts can exercise jurisdiction over foreign defendants provided that they have aimed their actions at the United States or will like, for example, with the US customer.

And in some cases, courts have found that even a single transaction, so even one sale from someone from another country into the United States, is enough to subject them to specific jurisdiction.

It's known as the stream of commerce theory.

So again, a little bit your experience might vary, but know that just because a foreign platform or a foreign seller is, is involved in, in a particular case doesn't mean that you don't have rights here based on your US trademark registration.

Now we know that these platforms for example, might be subject to liability in in US courts because of this jurisdiction issue.

But but, but how?

And well, it depends - lawyerly answer.

Certainly if the platform is selling the goods directly, these these are created and manufactured, distributed by that company, then they would be subject to liability, no?

But of course most of these illicit goods are being offered by third party sellers.

You're probably quite familiar with that term.

You might be a third party seller.

Now in those cases, both the seller as well as the platform could be held liable.

Now, the seller, of course, would be directly liable for selling these infringing or counterfeit products, but the platform could be liable under a theory of of what we call secondary liability, and specifically the type known as contributory liability.

And contributory liability is a legal doctrine that holds a party liable for trademark infringement if they assist or encourage the direct infringer.

Now, what does that really mean?

Well, we're still trying to figure that out too.

It's not a new concept of contributory trademark infringement liability.

It certainly predates e-commerce.

For example, a flea market might be liable if they allow a vendor to sell counterfeit items, or a landlord might be liable for allowing the sale of infringing goods at their at their place that the tenant is selling it in their place of business now.

But the leading case on e-commerce actually dates back to 2010.

It's this 2010 Tiffany versus eBay decision.

And in that case, the Second Circuit held that eBay was not liable for contributory trademark infringement despite knowing that counterfeit Tiffany products were on sale on the eBay website.

So, well, why is that so?

Because eBay was promptly removing every infringing listing of which it had specific notice, and it cancelled any fees that it earned, the court concluded that ebays existing anti counterfeiting measures were adequate.

They noted that it certainly wouldn't be OK for online marketplaces to intentionally shield themselves from knowledge of infringing goods, But as long as they're responsive to complaints in a timely manner, they're in the clear from a liability perspective. Now, The court also reasoned that private market forces provided a strong incentive for the online marketplaces to take action.

If people repeatedly are buying counterfeit products from your website, you're probably not going to stop at that website anymore.

So this would incentivize the marketplaces to try to take action to get counterfeits off their site.

They want to keep their sites clean.

Now, since this decision, the result has been that the onus to discover and report infringing listings is on the brands, on the trademark owners.

Now, the argument that platforms make, which I think is quite compelling, is that, you know, they're not, they're selling all hundreds, thousands, millions of different types of products and they're not in a position to know the ins and outs of everyone's trademarks so that the brands are going to be in the best position to identify fakes.

So that's, that's, that's sort of where we're at now.

What does this mean in practice?

It's a little bit of a, there's some discrepancies I should say right now, but pretty much most major platforms and social media sites are going to have their own policies and procedures.

Typically a notice and takedown request that you can file to provide notice of these infringing listings or infringing posts in the case of social media.

And they all have a different number of hours or so, but they will then take action.

That's how it is sort of on paper.

As I noted before in my prior session, some of these brand platforms have introduced special privileges or special areas for registered trademark brand owners.

I mentioned Amazon, the brand registry or ebay's Vero program.

So that's also something that trademark owners can take advantage of.

At the same time, I do want to be realistic here.

I know that it doesn't always work.

I am, we are constantly being told about from stakeholders about situations where they have contacted a particular platform and the goods haven't been taken down or they're taken down and they reappear again.

So I just wanted to kind of assure the folks that, you know, I tried that, it's not working.

You're not crazy.

That is something that we do here fairly regularly.

I just want to emphasize once again that we do speak regularly with these companies.

They want to talk to us.

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We have positive relationships.

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So to the extent you can kind of let us know what's going on, where the hang ups are, we really do value that information.

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And so we can convey to them on this sort of systemic level, figure out where those gaps are.

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Now, the other thing I think that consumers, or brand owners, should know about is this is an issue that has really caught the attention of Congress.

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Now. There's just been a lot of bipartisan interest in addressing the issue of counterfeit goods online.

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One particular piece of legislation that's been introduced that you might have heard about is called the Shop Safe Act.

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It's the stopping harmful offers on platforms by screening against fakes in e-commerce.

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But you know, we love acronyms and in government, so it's "shop safe", which is actually a lot easier to say now.

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It's actually been introduced in every congressional session since 2020 with some minimal edits each reintroduction.

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And that's something that our team is following very closely.

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Now, The act generally aims to reduce the availability of harmful counterfeit products by incentivizing online platforms to adopt best practices to prevent third party sellers from listing counterfeit products for sale.

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So what does that really mean?

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It basically would in some ways codify to an extent that Tiffany decision and it would make online marketplaces contributorily liable for counterfeit products.

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In other words, they can be in trouble for their sellers infringing goods if it affects consumer health and safety unless they follow this certain list of best practices outlined in the act and without going line by line of legislation, which you don't want me to do.

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The provisions include certain know your third party seller requirements and they also require platforms to proactively screen listings for infringing goods at no cost to the brand owners.

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So this is something we are monitoring quite closely.

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The other act that became law last year is the Inform Consumers Act.

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We're still sort of following what the effects of that act are, but just sort of for everyone's general knowledge, The Informed Consumers Act is really focused on the requirement that certain platforms, depending on their size are required to collect data regarding the third party sellers.

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The idea being that the really illicit actors don't really want their information out there, right?

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They want to be anonymous.

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So by requiring these third party sellers to provide information to the platforms to make themselves known, it's going to deter some of this bad behaviour.

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So we are going to continue to monitor this act and other legislation.

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So I think if to sort of conclude, I just wanted to say that I know this is not a new issue.

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Like if you are having an issue again, literally as I was sitting here, I received an e-mail from somebody.

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So this is a known issue.

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It's something that we're working on.

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It's something that we are interested in helping you with.

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So to the extent you are able to provide us details of your issues, while we cannot necessarily provide individual advice and necessarily get your listings taken down, having the information about these trends is extremely useful.

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And the platforms, both the ones that are based in the United States, but even the ones based abroad, they want to talk to us.

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They are actively engaged in this process.

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So please let us know.

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All right, thank you. Holly, so we've got three questions for you.

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The first is say there's a registered trademark, but it shows up as a username on a social media site or online in some capacity.

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That seems to be a popular concern.

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Yeah. We did receive a couple of questions, and I think an interesting concept that needs to be kind of addressed first is when is someone really infringing your mark versus just using it?

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So in order to be a trademark infringement, there has to be a use of that trademark or a confusingly similar trademark in commerce.

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Well, what does that mean?

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That means the other side has to actually be offering goods and services for sale or in the case of a non profit, they're rendering those services.

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OK, so merely using the trademark, even the exact same trademark as a username on Facebook or on X now we call it, or any of these other websites, or even as part of a domain name.

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I saw a question about that too.

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That is not trademark infringement.

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Well, does that mean you're out of luck?

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Are there any options? Maybe.

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So there are other types of laws that could apply here.

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Now, how that's going to be treated by, for example, a social media site is going to vary, but there are these ideas about false association.

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So I guess the official name for it would be false designation of origin.

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So if someone is using your trademark in a manner that it's likely to cause consumers to falsely believe that you're associated with endorsing, sponsoring, whatever that organization is, that can be actionable.

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So you might be able to find relief on that ground.

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The domain name thing gets a little bit more confusing.

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That's again, that could be this whole other program on, on how to do domain name issues.

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But again, provided that they're not really, the other side is not actually using that trademark in a way where they're offering anything, it can be tricky.

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You know that Nutella example that was discussed.

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So that would be an example where it'd be like a false designation of origin that people might believe Nutella was the one actually putting on the World Trademark Day.

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And not just an individual fan, but fan sites are permissible.

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That is a permissible use of a trademark.

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So if you have a Nutella fan, for example, username or as an avatar that is provided it's not being used in a way to sell competing products that might be an acceptable use.

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We would call that not to get into the legalese a nominative fair use, but simply using the trademark to describe the product is not any trademark infringement.

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OK. And so I think the next question might be somewhat similar, similar.

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So if you have a trademark registration, say for a clothing item and that clothing item shows up in a movie, how would they enforce that, right?

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So this one is tricky.

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I've actually dealt with this before in the video game context.

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We had a client that had a product and someone was using that product in a video game.

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Now, when we're talking about movies and music, this is where you start getting into some of the 1st Amendment issues.

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And so there is a task that courts will rely on.

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So Rogers versus Grimaldi test, we really want to get into the details about how that trademark is being used.

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It wasn't necessary, was it relevant, but you can still sort of.

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So again, I want to say this is like it's going to vary and this is something where you should definitely consult an attorney because it's a very niche area of the law.

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I would certainly welcome the folks on the stage to opine on this as well, but it really depends on what that use is, the extent of the use, how it's being used, whether it's a plot point or whether it's incidental.

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So you will see occasionally, sometimes in TV shows particularly see it as a reality TV, they'll like cover up the labels and stuff just because they want to even avoid this appearance of a false association.

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So I think that's why I'll leave it at that is it depends, but I don't know because you all might have some some experience with this as well.

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By and large, the the bigger production companies want to avoid that problem.

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So they will try to get permission or they're sensitive to a protest, etcetera.

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But I don't know your experience is Michelle.

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But the smaller the production company, either they don't know or they don't care or they're just trying to be edgy.

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It's a tough area for brand owners.

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It really is.

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It's such a niche issue that we actually have, like one of my partners.

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That's her specialty.

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It's like clearance.

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It's clearance.

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That's all she does.

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And it's, I mean, it's a nuanced issue.

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So you weren't kidding when you said check with a lawyer.

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Yeah.

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Bu videoda gölgeleme çalışması için 183 cümle ve 3315 kelime var. Konuşma bölümü 19:49 sürüyor. Konuşmacı dakikada yaklaşık 167 kelimeyle, günlük konuşmaya yakın doğal bir hızda konuşuyor. Kelimelerin %83’i İngilizcede en sık kullanılan 3.000 kelime arasında; geri kalanına başlamadan önce bakmakta fayda var.

Bu videodaki önemli kelimeler

Videodan öğrenmeye değer 15 kelime, telaffuzu ve anlamıyla:

Kelime	Telaffuz	Anlam
trademark isim	/ˈtɹeɪdmɑːk/	tescilli marka, alametifarika
commerce isim	/ˈkɑ.mɚs/	ticaret
abroad zarf	/əˈbɹɔːd/	dışarı
liability isim	/laɪəˈbɪlɪti/	borç
infringement isim	/ɪnˈfɹɪnd͡ʒmənt/	ihlâl
cellar isim	/ˈsɛləɹ/	bodrum, kiler
registration isim	/ˌɹɛd͡ʒ.ɪˈstɹeɪ.ʃən/	kayıt, tescil
seller isim	/ˈsɛlɚ/	satıcı, bayi
tricky sıfat	/ˈtɹɪk.i/	güç, zor
folk isim	/foʊk/	halk, ulus
username isim		kullanıcı adı, kullanıcı ismi
clothing isim	/ˈkloʊðɪŋ/	giysi, giyim kuşam
encourage fiil	/ɪnˈkʌɹ.ɪd͡ʒ/	teşvik etmek, cesaretlendirmek
monitor isim	/ˈmɑ.nɪ.tɚ/	ekran
scope isim	/skəʊp/	kapsam

Duyacağınız deyimsel fiiller

Kelime	Anlam
figure out fiil	açığa çıkarmak
go out fiil	çıkmak
show up fiil	ortaya çıkmak

Dikkat edilecek telaffuzlar

Konuşmacı they're, don't, you're gibi kısaltılmış biçimleri 49 kez kullanıyor. Bunları duyduğunuz gibi kısa söyleyin.

“sh” ve “zh” sesleri: jurisdiction /d͡ʒʊɹɪsˈdɪkʃən/, registration /ˌɹɛd͡ʒ.ɪˈstɹeɪ.ʃən/, designation /dɛzɪɡˈneɪʃən/, occasionally /əˈkeɪʒənəli/, shield /ˈʃild/
Uzun kelimeler — vurguyu doğru yere koyun: jurisdiction /d͡ʒʊɹɪsˈdɪkʃən/, liability /laɪəˈbɪlɪti/, registration /ˌɹɛd͡ʒ.ɪˈstɹeɪ.ʃən/, necessarily /ˌnɛs.əˈsɛɹ.ə.li/, designation /dɛzɪɡˈneɪʃən/

Bu videoyla nasıl çalışılır

Videonun tamamını konuşmadan bir kez dinleyin ve bilmediğiniz kelimeleri not edin.
0,75× hızla başlayın, cümle cümle tekrar edin ve kolaylaşınca normal hıza dönün.
Kendinizi kaydedin ve orijinaliyle karşılaştırın; trademark, commerce, abroad gibi kelimelere özellikle dikkat edin.

Bu videodaki dil bilgisi

Konuşmacının en çok kullandığı yapılar, videodaki sözcüklerin aynısıyla:

Yapı	Videoda
Present perfect have/has + fiilin üçüncü hâli — geçmişte olan ama şimdi de önemli olan bir eylem	has ordered · it's been · have signed
Edilgen yapı be + fiilin üçüncü hâli — kimin yaptığı değil, ne olduğu önemli	are involved · is involved · are created

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Shadowing Practice: Trademark enforcement: Dealing with infringement on social media and e-commerce platforms - Learn English Speaking with Video

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