Enforcement requires brands to share product information with marketplaces
Megan Bannigan et al, 2024 - Partner, Debevoise & Plimpton LLP “Does the US SHOP SAFE Act go too far in shifting liability?” World Trademark Review, 4/20, https://www.worldtrademarkreview.com/article/does-the-us-shop-safe-act-go-too-far-in-shifting-liability //DH
Due to the heightened anonymity of online transactions and the fact that most counterfeits come from overseas, holding counterfeit sellers accountable is often virtually impossible. The act recognises that some responsibility should fall on marketplaces that have the ability to monitor and terminate listings and third-party sellers. However, the act fails to recognise that marketplaces are not always positioned to know – in the absence of information uniquely known by brand owners – what every legitimate product looks like and how to distinguish real from counterfeit. Instead of fostering much-needed collaboration between brand owners and marketplaces, the act ties the hands of marketplaces by prohibiting them from requiring brand owners to share enough information for marketplaces to police listings effectively.
In order to accurately screen listings and sellers, marketplaces need access to information that is uniquely known by brand owners – what authentic products look like, what technology (such as Radio Frequency Identification) identifies authentic products, or what quantities of the product were released in various regions – to allow platforms to check for patterns and inconsistencies. For example, too much product coming out of sellers based in China would be evidence that the product is counterfeit, and listings could be targeted more specifically. Or platforms could compare distinguishing features of a verified image of a product to see if product listings do not match up.