Overturning Tiffany will alleviate companies of burdening costs

Many of the Change Respondents—AAFA, ABAIPL, the Automotive Anti-Counterfeiting Council (A2C2), the Footwear Distributors & Retail Association (FDRA), GBOC, Toy Association, and the Transnational Alliance to Combat Illicit Trade (TRACIT)—believe that the current state of the law, which puts the onus on brand owners to find and report listings of counterfeit goods to e-commerce platforms, disproportionately burdens brand owners. These Change Respondents note that not only do e-commerce platforms have no affirmative duty to police their sites for counterfeit products, but there is inconsistency in platforms’ notice-and-takedown procedures.28 IACC states, “[t]he end result has been a wide disparity in the level of IP [intellectual property] protection across the online space, characterized by a patchwork set of rules, procedures, and evidence requirements that rights-holders must navigate to seek assistance in protecting their brands. As the Toy Association explains, “certain tools are only made available to brands that have registered for particular marketplace enforcement programs that may have onerous terms; some are only available at a cost to the brand owner; and some may only be available to accepted brands after application to the marketplace,” and, in addition, “they are not uniform across marketplaces.” Further, because the process is reactive, by the time a listing for a counterfeit product is removed, consumers may have already been exposed to (and purchased) the illicit goods. d. The law has not been able to keep pace with current technology. Multiple Change Respondents—AAFA, the Center for Anti-Counterfeiting and Product Protection (A-CAPP), FDRA, GBOC, and TRACIT—argue that e-commerce platform incentives to keep counterfeit listings off their sites (e.g., consumer trust and reputation) are outweighed by the incentives to maximize listings, and therefore profits.