Congress is key to harmonization of trademark law

With the counterfeit epidemic being such a pressing problem, a judicial approach is not a viable solution. While the logic behind the Cartier case exists within the judicial forum, if enforcement is kept to the judiciary and not extended to the legislature, the costs may prove unworkable. 230 Further, with the current standards, "the jurisdiction where a case is filed can dictate whether a claim for contributory infringement will be successful," because each jurisdiction 231 has differing common law. This is why harmonization is both appropriate and necessary. Therefore, if enforcement is kept to the judiciary, it will likely not be effective because the interpretation of the law will vary, and maximum harmonization can only be achieved through legislative means. 232

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For maximum harmonization, the U.S. government may transpose the guidelines into the United States Code--much like the DMCA for copyright law--essentially elaborating on the Lanham Act, and the EU would create a directive, or even more ideal, a regulation, so that compliance across each Member State is guaranteed. But see Robert W. Payne, Unauthorized Online Dealers of "Genuine" Products in the Amazon Marketplace and Beyond: Remedies for Brand Owners, 18 J. INTERNET L. 3, 9 (2014) ("[T]he DMCA and VeRO programs are sometimes referred to as a 'whack a mole' game, having little real effect.")