Stopping Harmful Offers on Platforms by Screening Against Fakes in E-commerce Act of 2020 or SHOP SAFE Act of 2020
This bill establishes that an electronic commerce platform shall be liable for trademark infringement by a third-party seller of goods that implicate health and safety unless the platform takes certain actions.
Specifically, the platform may be contributorily liable if the seller uses a counterfeit mark in connection with selling, offering, or advertising such goods on the platform. The platform may avoid such liability by taking certain actions, including (1) requiring the seller to be available for service of process in the United States, (2) verifying the seller's identity and contact information, (3) requiring the seller to agree to not use counterfeit marks with goods sold on the platform, (4) implementing technical measures to prescreen listings on the platform and remove listings for goods being sold with a counterfeit mark, and (5) implementing policies to remove and ban repeat offenders.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6058 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 6058
To amend the Trademark Act of 1946 to provide for contributory
liability for certain electronic commerce platforms for use of a
counterfeit mark by a third party on such platforms, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 2, 2020
Mr. Nadler (for himself, Mr. Collins of Georgia, Mr. Johnson of
Georgia, and Mrs. Roby) introduced the following bill; which was
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Trademark Act of 1946 to provide for contributory
liability for certain electronic commerce platforms for use of a
counterfeit mark by a third party on such platforms, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stopping Harmful Offers on Platforms
by Screening Against Fakes in E-commerce Act of 2020'' or the ``SHOP
SAFE Act of 2020''.
SEC. 2. CONTRIBUTORY LIABILITY FOR ELECTRONIC COMMERCE PLATFORMS.
Section 32 of the Act entitled ``An Act to provide for the
registration and protection of trademarks used in commerce, to carry
out the provisions of certain international conventions, and for other
purposes'', approved July 5, 1946 (commonly known as the ``Trademark
Act of 1946'') (15 U.S.C. 1114), is amended by inserting at the end the
following:
``(4)(A) An electronic commerce platform shall be
contributorily liable for infringement by a third-party seller
participating on the platform for use in commerce of a
counterfeit mark in connection with the sale, offering for
sale, distribution, or advertising of goods that implicate
health and safety, unless the following requirements are met:
``(i) The third-party seller is available for
service of process in the United States.
``(ii) Before any alleged infringing act by the
third-party seller, the platform demonstrates that the
platform took each of the following reasonable steps to
prevent such use on the platform:
``(I) Verified through governmental
identification and other reliable documentation
the identity, principal place of business, and
contact information of the third-party seller.
``(II) Required the third-party seller to
verify and attest to the authenticity of goods
on or in connection with which a registered
mark is used.
``(III) Imposed on the third-party seller
as a condition of participating on the platform
contractual requirements that--
``(aa) the third-party seller
agrees not to use a counterfeit mark in
connection with the sale, offering for
sale, distribution, or advertising of
goods on the platform; and
``(bb) the third-party seller
consents to the jurisdiction of United
States courts with respect to claims
related to the third-party seller's
participation on the platform.
``(IV) Displayed conspicuously on the
platform the verified principal place of
business, contact information, and identity of
the third-party seller, the country of origin
and manufacture of the goods, and the location
from which the goods will be shipped.
``(V) Required each third-party seller to
use images that the seller owns or has
permission to use and that accurately depict
the actual goods offered for sale on the
platform.
``(VI) Implemented at no cost to the
registrant proactive technological measures for
screening goods before displaying the goods to
the public to prevent any third-party seller's
use of a counterfeit mark in connection with
the sale, offering for sale, distribution, or
advertising of goods on the platform.
``(VII) Implemented at no cost to the
registrant a program to expeditiously disable
or remove from the platform a listing by any
third-party seller that reasonably could be
determined to have used a counterfeit mark in
connection with the sale, offering for sale,
distribution, or advertising of goods.
``(VIII) Terminated use of the platform by
any third-party seller that has engaged in more
than three instances of use of a counterfeit
mark in connection with the sale, offering for
sale, distribution, or advertising of goods on
the platform.
``(IX) Implemented at no cost to the
registrant technological measures for screening
third-party sellers to ensure that sellers who
have been terminated do not rejoin or remain on
the platform under a different seller identity
or alias.
``(X) Provided the information verified
under clause (I) of each third-party seller
that used a counterfeit mark in connection with
the sale, offering for sale, distribution, or
advertising of goods on the platform to
relevant law enforcement and, upon request, the
registrant.
``(B) In this paragraph:
``(i) The term `counterfeit mark' has the meaning
given that term in section 34(d)(1)(B).
``(ii) The term `electronic commerce platform'
means any electronically accessed platform that
includes publicly interactive features that allow for
arranging the sale, purchase, payment, or shipping of
goods, or that enables a person other than an operator
of such platform to sell or offer to sell physical
goods to consumers located in the United States.
``(iii) The term `goods that implicate health and
safety' means goods the use of which can lead to
illness, disease, injury, serious adverse event,
allergic reaction, or death if produced without
compliance with all applicable Federal, State, and
local health and safety regulations and industry-
designated testing, safety, quality, certification,
manufacturing, packaging, and labeling standards.
``(iv) The term `third-party seller' means a person
other than the electronic commerce platform who uses
the platform to arrange for the sale, purchase,
payment, or shipping of goods.
``(C) Nothing in this paragraph may be construed to limit
liability for direct infringement.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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