SHOP SAFE does the same thing the plan does – establish contributory liability and a safe harbor

Facilitates Robust E-commerce: This Act provides a safe harbor from contributory infringement for those platforms that follow the best practices set out in the statute to keep sellers of counterfeit products off their platforms. Because the steps are reasonable, and the benefit to the platforms significant—shielding from contributory trademark infringement liability—the statute does not create unworkable barriers to continued robust e-commerce. The Act supports new market entrants by exempting platforms that have not reached a certain level of sales, unless counterfeiting becomes prevalent on the platform. The Act is limited in application to goods that have a health or safety impact, goods that when counterfeited have the most potential for consumer harm.

SECTION-BY-SECTION

Section 1. Short Title.

Section 2. Contributory Liability for Electronic Commerce Platforms.

Section 2(a) amends Section 32 of the Trademark Act of 1946 (15 U.S.C. § 1114) to append a new paragraph (§ 1114(4)) that provides expressly for contributory liability for electronic commerce platforms for sales of counterfeit products that pose a risk to consumer health and safety unless certain best-practices are followed by the platform. Under Tiffany (NJ), Inc. v. eBay, 600 F.3d 93 (2d Cir. 2010), a platform is only liable for the activities of a third party if it intentionally induced that party to infringe or it continued to supply its services to a party that it had reason to know was engaging in trademark infringement. The SHOP SAFE Act provides a statutory scheme for assessing contributory liability that replaces the Tiffany v. eBay framework in covered circumstances.