The plan causes over-enforcement on a massive scale

The SHOP Safe Act would create significant and unreasonable impediments for small and "micro" businesses that rely on platforms to sell and resell products to other businesses and consumers. The bill would make it difficult for such businesses to use trademarks to describe the products they are offering, by requiring platforms to use reasonable technological tools to scan nearly every third-party listing or advertisement that includes a trademark, and to rely on such automated processes to make determinations that brand-trained experts are expected to make in every other legal context, including in alleging copyright infringement under the DMCA. Technology is not perfect, and by threatening platforms with legal liability if they fail to take action to remove potential "false positives," the bill would incentivize overenforcement at a potentially massive scale. The bill would also require companies to impose punitive consequences on sellers who have used trademarks that are presumed to be counterfeit—including permanently banning them from the platform, but the draft language is remarkably devoid of any semblance of due process to allow sellers to confront brand owners and assert that their use of a trademark was valid.