Current enforcement is more costly

In Tiffany, there were concerns about who should be responsible for finding counterfeits.149 Tiffany argued if eBay were not held liable, the ruling would require rightsholders to police online marketplaces "24 hours a day, and 365 days a year," and many rightsholders would be unable to bear this burden.1 5 ' Rightsholders have, in fact, encountered several hurdles after the Tiffany ruling. In holding online sellers accountable, existing laws tend to shield foreign counterfeiters from liability because they are often outside of U.S. jurisdiction. 15 1 Thus, rightsholders often turn to either continuously taking down listings or suing for trademark infringement.15 2 Ultimately, the burden is on rightsholders to police and report infringement, 153 creating financial and time-consuming costs.

The time-consuming burdens on rightsholders are significant. The Tiffany decision, arguably, shifted the burden away from the ecommerce platform and placed it onto the rightsholder to find and police counterfeits,154 engaging in a continuous game of whack-a-mole. 155 For example, Wish.com blocked infringement requests by legitimate owners against sellers, and Amazon, too, has denied legitimate infringement claims. 156 Additionally, when Mindy reached out to third-party sellers, she never received a response.15 7 As a result, counterfeits destroy products' quality, making it impossible for small businesses to address. 158

There are also incredible financial burdens as a result of current law. A common way to show specific instances of infringement is through test buys, where a seller buys a product to test the quality.159 However, this action can cost a significant amount of money if there are multiple listings and sellers, especially for small businesses.160 Tiffany alone spent $14 million in anti-counterfeiting efforts. 161 As a result of these financial burdens, some brands are turning to blockchain technology to certify the authenticity of their products.162 Brands have even instituted intellectual property task forces in their fight against counterfeiters, involving collaboration between major online marketplaces and well-known brands. 163 Changes should be made as many of these efforts could prove to be difficult, or even impossible, for small businesses.

Online marketplaces are feeling the effects of the counterfeit problem. For instance, in 2019, Nike pulled its products from Amazon after its short stint as a wholesaler to combat Nike fakes on the platform. 164 The successful activewear company was unable to maintain control because when Amazon removed counterfeit listings, more would appear under a different name. 165 Brands, such as Nike, attempt these preventative measures due to the Tiffany ruling, taking an "if you can't beat them, join them" approach.166 As a result, some online marketplaces are increasing their anti-counterfeiting efforts. 167