The plan can’t solve microelectronics – their author says that contributory liability must be applied beyond e-commerce AND that criminal persecution is more important.

Counterfeit microelectronics have been a persistent threat for the last twenty years. Counterfeit electronic parts pose serious risks to human health and safety, harm the economy, and jeopardize national security. Although the Lanham Act provides potent civil remedies for trademark counterfeiting, an analysis of trademark filings from 2009 through 2022 reveals that manufacturers of electronic parts almost never pursue civil actions against counterfeiters. The ”material alteration theory” encompasses many types of activity engaged in by counterfeiters, including the sale of used, refurbished, and remarked parts. As a result, the lack of civil enforcement must be attributed to factors such as the cost of filing suit, concerns about the impact on stock values, and the inability to reach anonymous counterfeiters (often in other countries) who sell fake products through online marketplaces. Congress must amend the Lanham Act to recognize contributory liability by intermediaries, including ecommerce platforms and others, that facilitate infringement when they have actual or constructive knowledge that infringing activities are taking place on their sites. Ultimately, however, an enhanced enforcement of criminal penalties may be an even more essential part of the solution to counterfeit microelectronics. Debugging the Trademark Laws II: Criminal Penalties for Trafficking in Counterfeit Microelectronics will explore the apparent underutilization of criminal sanctions against counterfeiters, and it will propose amendments to the federal criminal code that intend to circumscribe their activities.