SHOP SAFE Act of 2020

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. 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 SHOP SAFE Act of 2020 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 Trademark Act of 1946 15 U.S.C. 1114 (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 (ii) The term electronic commerce platform (iii) The term goods that implicate health and safety (iv) The term third-party seller (C) Nothing in this paragraph may be construed to limit liability for direct infringement. .

Summary: 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.