The status quo is the best option – platforms work cooperatively with brands now to proactively enforce

Anyone who has enforced IP rights can tell you that identifying counterfeit goods can be difficult - if not impossible unless you have a high level of expertise and familiarity with the brand and products that are being counterfeited. Trademark owners often hire employees and consultants who are solely focused on expertly identifying the subtle differences between genuine products and counterfeits in support of their enforcement efforts. These individuals work with a host of federal, state, and local agencies, including the U.S. Department of Justice (“DOJ”), U.S. Customs and Border Protection (“CBP”), and state and local police departments, as well as district attorneys’ offices that have staff dedicated to enforcing criminal anti-counterfeiting laws.21

Regardless of whether enforcement activities are occurring online or offline, U.S. trademark law puts the onus of identifying counterfeit goods on those who have the requisite expertise to accurately perform that task: brand owners and their agents. Brand owners are in the best position to know when a product being sold online is counterfeit; online services cannot have expertise in every trademark. For example, online services don’t know whether a particular seller is authorized by the brand owner or not, nor whether a listing for a product depicts a counterfeit product. Indeed, identifying counterfeits based on the quality, design and specifications of a product is often, if not exclusively, within the expertise of the brand itself. Further, since many online services never possess the counterfeit goods, they cannot examine the goods for obvious signs of counterfeiting, even if such signs were known to them. Nor would they know what to look for concerning any particular problem. And as hard as detecting counterfeiting is for large companies, that problem is even worse for small- and medium-sized companies, who cannot afford to build systems to police all possible counterfeiting on their sites.

However, it would be a mistake to conclude that online services can get off scot-free anytime a counterfeit product is sold via their services. On the contrary, even though identifying counterfeit goods can be incredibly difficult for anyone other than a trademark owner—especially online services which might never come into physical contact with the products—the law today does not exempt an online service from liability where a service knows that a particular listing is infringing, or where a service is willfully blind to infringing listings. IA’s members have invested heavily in developing collaborative and productive relationships with brands across industries and around the world, and worked cooperatively with brand owners to take down infringing listings and make the online environment as safe as possible for consumers.

Accordingly, existing trademark law protections, coupled with the natural incentive to maintain a trustworthy environment for consumers and business partnerships, encourage online service providers to work proactively to support enforcement by brand owners and remove listings for counterfeit products whenever they are identified.