,,ii #aahth ,,congress #ast ,session ,s4 #bicd ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,september #bf 7legislative day1 ,september #bb71 #bjbc,mr4 ,coons 7for himself and ,mr4 ,tillis7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to amend the ,trademark ,act of #aidf to provide for contributory liability for certain electronic commerce platforms for use of a counterfeit mark by a third party on such platforms1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,stopping ,harmful ,offers on ,platforms by ,screening ,against ,fakes in ,e-commerce ,act of #bjbc or the ,,shop ,,safe ,act of #bjbc4 #b4 ,contributory liability for electronic commerce platforms 7a7 ,in general ,section #cb of the ,act entitled ,an ,act to provide for the registration and protection of trademarks used in commerce1 to carry out the provisions of certain international conventions1 and for other purposes1 approved ,july #e1 #aidf 7commonly known as the ,trademark ,act of #aidf7 7#ae ,u4,s4,c4 #aaad71 is amended by adding at the end the following3 7#d7 7,a7 ,except as provided in subparagraph 7,b71 an electronic commerce platform shall be contributorily liable in a civil action under paragraph 7#a7 for a case in which a third-party seller is shown to have used in commerce a counterfeit mark in connection with the sale1 offering for sale1 distribution1 or advertising of a good that implicates health and safety on the platform4 7,b7 ,an electronic commerce platform shall not be subject to contributory liability under subparagraph 7,a7 if the electronic commerce platform demonstrates that the platform took reasonable measures to implement each of the following steps to prevent infringing use by the applicable third-party seller on the platform before that infringing use3 7i7 ,determined after an investigation and periodically confirmed-- 7,i7 that the third-party seller designated a registered agent in the ,united ,states for service of process2 or 7,,ii7 in the case of a third-party seller located in the ,united ,states that has not designated a registered agent under subclause 7,i71 that the third-party seller has designated a verified address for service of process in the ,united ,states4 7ii7 ,imposed on the third-party seller as a condition of participating on the electronic commerce platform requirements that the third-party seller-- 7,i7 consents to the jurisdiction of the courts of the ,united ,states with respect to claims related to participation by the third-party seller on the platform2 and 7,,ii7 uses images on the electronic commerce platform that accurately depict the goods sold1 offered for sale1 distributed1 or advertised on the electronic commerce platform4 7iii7 ,provided accessible electronic means by which a registrant and consumer can notify the electronic commerce platform of suspected use of a counterfeit mark4 7iv7 7,i7 ,implemented at no charge from the electronic commerce platform to registrants proactive measures for screening listings for goods before displaying the goods to the public to prevent the use by any third-party seller of a counterfeit mark in connection with the sale1 offering for sale1 distribution1 or advertising of goods on the platform4 7,,ii7 ,for purposes of implementing the proactive measures described in subclause 7,i7-- 7aa7 a registrant shall provide the applicable electronic commerce platform with a notice of the mark of the registrant and a point of contact in advance2 and 7bb7 the applicable electronic commerce platform may not require that a registrant participate in any program specific to the electronic commerce platform4 7,,iii7 ,an electronic commerce platform shall not be liable under subparagraph 7,a7 for failure to comply with subclause 7,i7 if the registrant has not provided the platform with the information required under subclause 7,,ii7 and information relating to the mark is not publicly available4 7,,iv7 ,if the screening described in subclause 7,i7 blocks goods from being displayed on the applicable electronic commerce platform1 the electronic commerce platform shall allow an opportunity for the applicable third-party seller to provide proof that the goods in question are not counterfeit4 7v7 7,i7 ,implemented at no charge from the electronic commerce platform to registrants a program to expeditiously disable or remove from the platform any listing for which the platform has actual or constructive knowledge of the use of a counterfeit mark in connection with the sale1 offering for sale1 distribution1 or advertising of goods4 7,,ii7 ,for the purposes of subclause 7,i71 constructive knowledge of the use of a counterfeit mark may be inferred based on information gathered by the applicable electronic commerce platform 7including information submitted by registrants to the electronic commerce platform71 including information regarding-- 7aa7 the use of a counterfeit mark on the platform2 7bb7 the allegedly infringed registration2 7cc7 identifying characteristics of a particular listing or third-party seller2 or 7dd7 other circumstances1 as appropriate4 7,,iii7 ,an electronic commerce platform may reinstate a listing disabled or removed under this clause1 if1 after an investigation initiated by the platform or upon request of the affected third-party seller1 the platform reasonably determines that a counterfeit mark was not used in the listing4 7,,iv7 ,a verified decision to reinstate a listing under subclause 7,,iii7 shall not be a basis for finding that the applicable electronic commerce platform failed to comply with this clause4 7vi7 7,i7 ,implemented a publicly available1 written policy that requires termination of a third-party seller that has been determined to have engaged in repeated use of a counterfeit mark in connection with the sale1 offering for sale1 distribution1 or advertising of goods on the electronic commerce platform4 7,,ii7 ,the use of a counterfeit mark by a third-party seller in #c separate listings during a #a-year period typically shall be considered repeated use for the purposes of subclause 7,i71 but an electronic commerce platform may allow a third-party seller to remain active after repeated use of a counterfeit mark when mitigating circumstances exist4 7,,iii7 ,the determination of whether mitigating circumstances exist for the purposes of subclause 7,,ii7 shall consider the overall activity of the applicable third-party seller1 efforts the third-party seller has taken to cure supply-chain concerns1 third-party seller intent1 the scope and nature of the defenses offered by the third-party seller1 efforts the third-party seller takes to refute or resolve disputes once notified of a concern1 and any other factor considered relevant by a court4 7,,iv7 ,an electronic commerce platform may reinstate a third-party seller after terminating the third-party seller under subclause 7,i71 if1 after an investigation initiated by the platform or upon request of the affected third-party seller1 the platform determines that the third-party seller did not engage in repeated use of a counterfeit mark or that mitigating circumstances exist4 7,v7 ,a verified decision by an electronic commerce platform under subclause 7,,iv7 to reinstate a third-party seller shall not be a basis for finding that the platform failed to comply with this clause4 7vii7 ,implemented at no charge from the electronic commerce platform to registrants measures for screening third-party sellers to ensure that third-party sellers that have been terminated under clause 7vi7 do not rejoin or remain on the platform under a different seller identity or alias4 7viii7 ,provided a verified basis1 upon request of a registrant1 for the registrant to contact a third-party seller1 or the designated agent of a third-party seller for service of process1 if the registrant has a bona fide belief that the third-party seller has used a counterfeit mark of a mark belonging to the registrant in connection with the sale1 offering for sale1 distribution1 or advertising of goods that implicate health and safety on the electronic commerce platform1 except that the platform is not required to provide information that constitutes the personal identity of an individual1 a residential street address1 or personal contact information of an individual 7and1 in such case1 the platform shall provide an alternative means of contacting the third-party seller74 7,c7 ,the determination of whether the measures in this paragraph are reasonable shall consider the size and resources of an electronic commerce platform1 the nature of the goods and services provided by the platform1 available technological and non-technological solutions1 the amount of information provided by a registrant to the platform1 and any other factor considered relevant by a court4 7,d7 7i7 ,this paragraph shall apply to an electronic commerce platform-- 7,i7 that has sales on the platform in the current or previous calendar year in an amount of not less than #ejj1jjj2 or 7,,ii7 with less than #ejj1jjj in sales on the platform in the current or previous calendar year1 beginning on the date that is #ahj days after the date on which the platform receives the tenth notice1 in aggregate1 that qualifies under clause 7ii74 7ii7 ,to count toward the aggregate #aj-notice threshold under clause 7i77,,ii71 a notice shall-- 7,i7 include a reference to this paragraph2 7,,ii7 include an explicit notification of the #aj-notice threshold and the requirement of the applicable electronic commerce platform to publish the information under clause 7iii72 and 7,,iii7 identify a listing on the applicable electronic commerce platform that reasonably could be determined to have used a counterfeit mark in connection with the sale1 offering for sale1 distribution1 or advertising of goods that implicate health and safety4 7iii7 ,not later than #cj days after the date on which an electronic commerce platform described in clause 7i77,,ii7 receives the first notice under clause 7ii71 the platform shall make publicly available an attestation that-- 7,i7 the sales of goods on the platform in the current or previous calendar year were less than #ejj1jjj2 and 7,,ii7 includes an aggregate count of the notices received by the platform that qualify under clause 7ii71 which shall be updated upon receipt of additional notices by the platform4 7,e7 ,an electronic commerce platform shall implement and maintain reasonable security procedures and practices1 including administrative1 physical1 and technical safeguards1 appropriate to the nature of the data and the purposes for which the data will be used1 to protect the data collected to comply with the requirements of this paragraph from unauthorized use1 disclosure1 access1 destruction1 or modification4 7,f7 ,this paragraph may not be construed to limit liability or defenses in contexts other than those described in this paragraph1 including any cause of action or defenses available under any other provision of this ,act1 notwithstanding that the same facts may give rise to a claim under this paragraph4 7,g7 ,with respect to fiscal year #bjbd1 and each fiscal year thereafter1 the amounts in subparagraph 7,d7 shall be increased by an amount equal to the percentage increase during the preceding fiscal year1 if any1 in the ,consumer ,price ,index for ,all ,urban ,consumers published by the ,department of ,labor4 7,h7 ,in this paragraph3 7i7 ,the term consumer product has the meaning given the term in section #aja of the ,magnuson-,moss ,warranty--,federal ,trade ,commission ,improvement ,act 7#ae ,u4,s4,c4 #bcja7 and section #gjj4a of title #af1 ,code of ,federal ,regulations1 or any successor regulation4 7ii7 ,the term counterfeit mark has the meaning given the term in section #cd7;d77#a77;,b74 7iii7 ,the term electronic commerce platform-- 7,i7 means any person or entity that operates a consumer-directed electronically based or accessed platform that-- 7aa7 includes features that allow for1 facilitate1 or enable third-party sellers to engage in the sale or purchase of a consumer product in the ,united ,states2 and 7bb7 is used by #a or more third-party sellers2 and 7,,ii7 does not include any electronically-accessed platform that-- 7aa7 prohibits the sale of goods by a third-party seller2 and 7bb7 takes reasonable steps to prevent an unauthorized third-party sale or offer for sale4 7iv7 ,the term good that implicates health and safety means a consumer product1 the use of which can lead to illness1 disease1 injury1 serious adverse event1 allergic reaction1 or death1 if the consumer product is produced without compliance with all applicable ,federal1 ,state1 and local health and safety regulations and industry-designated testing1 safety1 quality1 certification1 manufacturing1 packaging1 and labeling standards4 7v7 ,the term third-party seller means any seller1 independent of an electronic commerce platform1 that sells1 offers to sell1 or contracts to sell a consumer product in the ,united ,states through an electronic commerce platform4 4 7b7 ,effective date ,this section1 and the amendments made by this section1 shall take effect on the date that is #a year after the date of enactment of this ,act4