Notice and notice increases compliance costs – brands will flood providers with too many notices and counterfeiters will still circumvent

Another proposal also suggests importing much of the DMCA into the scheme for contributory trademark liability for Online Marketplaces.134 This proposal alters the notice and takedown requirement and suggests a notice and notice requirement wherein the service provider would forward the infringement claims to the proposed infringer.135 This would reduce some of the anticompetitive effects that can come from abuse of notice and takedown procedures.136 The proposal also highlights that because it is often more difficult to discern whether trademark infringement has occurred in a listing, having a notice and notice scheme allows the potential infringer to defend themselves and resolve the issue before experiencing the damaging effects from unwarranted takedowns.137

This proposal would have some benefits; however, the scheme is not a perfect match for its proposed goals and for ending online counterfeiting. A big reason for the notice and notice proposal is to prevent abuse that notice and takedown regimes can incentivize. Unfortunately, abusive notices can still occur, although it is more difficult. Parties receiving notices must respond to them, and bombarding parties with tons of notices can be expensive and difficult to respond to, especially if the notified party is a smaller business. A notice and notice scheme would grant prolific counterfeiters an opportunity to post alternative listings and create new profiles before their faulty listings are removed from the relevant platform.