The lack of a definition for ‘reasonable’ doesn’t mean it’s not clear. It’s a broader standard than the Tiffany standard
June M. Besek, 2020 – Chair, American Bar Association Section of Intellectual Property Law. Comment submitted to the Patent and Trademark Office. Re: Docket No. PTO–T–2020–0035 Office of Policy and International Affairs, Comment Request; Secondary Trademark Infringement Liability in the E-Commerce Setting, 12/21, https://www.regulations.gov/comment/PTO-T-2020-0035-0004 //DH
Footnote 7. The Act calls for expeditious removal of listings and sellers where counterfeiting can “reasonably” be determined. While “reasonable” standard remains undefined in the Act, see infra, given Congress’s stated desire to overturn Tiffany, the Section believes such a standard would be broader than the narrow definition in Tiffany, such that it would account for what a reasonable person would know under particular circumstances, and what reasonable actions would be required given that knowledge.