Requiring platforms determine if sellers have an agent in the US overburdens platforms
Jonathan Berroya, 2021 - Senior Vice President and General Counsel, Internet Association. Testimony before the Subcommittee On Courts, Intellectual Property, and The Internet Judiciary Committee U.S. House of Representatives. The SHOP SAFE Act: Stemming the Rising Tide of Unsafe Counterfeit Products Online. 5/27, https://docs.house.gov/meetings/JU/JU03/20210527/112713/HHRG-117-JU03-Wstate-BerroyaJ-20210527.pdf //DH
There are several additional problems with the legislation that should be reviewed. The bill includes a provision that would appear to require platforms to prevent any sellers who have been terminated—regardless of whether the termination is related to the use of counterfeit trademarks—from rejoining or remaining on the platform. The legislation indicates that platforms must determine that sellers have designated a registered agent in the U.S. or risk facing liability. This could be quite burdensome, requiring periodic searches of various secretary of state registries. Another new provision states that "reasonable awareness [of counterfeits/IP infringements]... may be inferred based on information regarding the use of a counterfeit mark on the platform generally, general information about the third-party seller, identifying characteristics of a particular listing, or other circumstances as appropriate."31 This clarification is highly problematic in that it essentially defines constructive knowledge in terms of general knowledge, which is the opposite of how the law had previously handled it.