Plan’s ambiguous on requirements to meet a safe harbor – that prevents it from functioning

The SHOP SAFE Act had a laudable goal (to reduce or eradicate the use of counterfeit marks in connection with the sale and distribution of goods that implicate health and safety on e-commerce platforms), but the Act simply went too far. Rather than addressing the real question-the level of knowledge required for any third party accused of contributory infringement-SHOP SAFE was limited to e-commerce platforms, and it attempted to impose on the platform the burden of demonstrating that it took twelve separate steps to verify the identity of the listing party and the authenticity of marks used in connection with the sale of goods, in order to avoid liability. The processes to be implemented were not gauged to any perceived risk that the items offered for sale might be counterfeit or could potentially cause a level of harm to purchasers or end users. Further, many of the terms in the act were ill-defined, and there was much ambiguity about precisely what was required from the ecommerce platforms in order for them to avoid contributory liability. For example, the proposed act required "reasonable proactive technological measures for screening goods before displaying the goods to the public" in order to prevent use of a counterfeit mark,416 but it was unclear whether this was intended to require screening of the actual goods themselves, images depicting the goods, descriptions of the goods, or something else entirely. "Reasonable technological measures for screening third-party sellers" were also required, in order to ensure that terminated sellers do not later rejoin the platform under an alias,417 but again no further details were provided.