tribution, or advertising of goods on the plat-
form. The determination of whether proactive 
measures are reasonable shall consider the size 
and resources of a platform, the available tech-
nological and non-technological solutions at the 
time of screening, the information provided by 
the registrant to the platform, and any other 
factor considered relevant by a court. 
‘‘(ix) Provided reasonably accessible elec-
tronic means by which a registrant and con-
sumer can notify the platform of suspected use 
of a counterfeit mark. 
‘‘(x) Implemented at no charge from the 
platform to the registrant a program to expedi-
tiously disable or remove from the platform any 
listing for which a platform has reasonable 
awareness of use of a counterfeit mark in con-
nection with the sale, offering for sale, distribu-
tion, or advertising of goods. Reasonable aware-
ness of use of a counterfeit mark may be in-
ferred based on information regarding the use 
of a counterfeit mark on the platform generally, 
general information about the third-party seller, 
identifying characteristics of a particular list-
ing, or other circumstances as appropriate. A 
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platform may reinstate a listing disabled or re-
moved under this clause if, after an investiga-
tion, the platform reasonably determines that a 
counterfeit mark was not used in the listing. A 
reasonable decision to reinstate a listing shall 
not be a basis for finding that a platform failed 
to comply with this clause. 
‘‘(xi) Implemented a publicly available, 
written policy that requires termination of a 
third-party seller that reasonably has been de-
termined to have engaged in repeated use of a 
counterfeit mark in connection with the sale, of-
fering for sale, distribution, or advertising of 
goods on the platform. Use of a counterfeit 
mark by a third-party seller in 3 separate list-
ings within 1 year typically shall be considered 
repeated use, but a platform may allow a third- 
party seller to remain active after repeated use 
of a counterfeit mark when reasonable miti-
gating circumstances exist. The determination 
of whether reasonable mitigating circumstances 
exist shall consider the overall activity of the 
third-party seller, efforts the third-party seller 
has taken to cure supply-chain concerns, efforts 
the third party takes to resolve disputes once 
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notified of a concern, and any other factor con-
sidered relevant by a court. A platform may re-
instate a third-party seller if, after an investiga-
tion, the platform reasonably determines that 
the third-party seller did not engage in repeated 
use of a counterfeit mark or that reasonable 
mitigating circumstances existed. A reasonable 
decision to reinstate a third-party seller shall 
not be a basis for finding that a platform failed 
to comply with this clause. 
‘‘(xii) Implemented at no charge from the 
platform to the registrant reasonable 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. The determination of 
whether screening measures are reasonable 
shall consider the size and resources of a plat-
form, the available technological and non-tech-
nological solutions at the time of screening, and 
any other factor considered relevant by a court. 
‘‘(xiii) Provided a verified basis to contact 
a third-party seller upon request by a registrant 
that has a bona fide belief that the seller has 
used a counterfeit mark in connection with the 
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sale, offering for sale, distribution, or adver-
tising of goods on the platform except that the 
platform is not required to provide information 
that constitutes the personal identity of an indi-
vidual, a residential street address, or personal 
contact information of an individual (in such 
case, the provider shall provide an alternative 
means of contacting the third-party seller). 
‘‘(B)(i) This paragraph shall apply— 
‘‘(I) to an electronic commerce platform 
that has sales on the platform in the previous 
calendar year of not less than $500,000; or 
‘‘(II) to an electronic commerce platform 
with less than $500,000 in sales in the previous 
calendar year, 6 months after the platform has 
received 10 notices, in aggregate, that qualify 
under clause (ii). 
‘‘(ii) To count toward the aggregate 10-notice 
threshold under clause (i)(II), a notice shall— 
‘‘(I) include a reference to this paragraph; 
‘‘(II) include an explicit notification of the 
10-notice limit and the requirement of the plat-
form to publish the information in clause (iii); 
and 
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‘‘(III) identify a listing on the platform 
that reasonably could be determined to have 
used a counterfeit mark in connection with the 
sale, offering for sale, distribution, or adver-
tising of goods that implicate health and safety. 
‘‘(iii) Within 1 month of receiving the first no-
tice under clause (ii), a platform with less than 
$500,000 in sales in the previous calendar year shall 
publish publicly an attestation that the sales on the 
platform in the previous calendar year were less 
than $500,000, and an aggregate count of notices 
that qualify under clause (ii). The aggregate count 
of notices should be updated as additional notices 
are received. 
‘‘(C) Notwithstanding clauses (iii) and (vi) of 
subparagraph (A), a platform is exempt from the re-
quirements of such clauses for goods, on or in con-
nection with which a registered mark is used, sold, 
offered for sale, or advertised by a third-party seller 
for less than $5,000 if the third-party seller sells, of-
fers for sale, or advertises on the platform 5 or 
fewer goods of the same type in connection with the 
same mark in a 1-year period. 
‘‘(D) This paragraph may not be construed to 
limit liability in contexts other than those described 
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in this paragraph, including any cause of action 
available under any other provision of this Act, not-
withstanding that the same facts may give rise to a 
claim under this paragraph. 
‘‘(E) For each fiscal year commencing after De-
cember 31, 2023, the amounts in subparagraphs (B) 
and (C) shall be increased each year by an amount 
equal to the percentage increase, if any, in the Con-
sumer Price Index. 
‘‘(F) 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 plat-
form’ means any electronically accessed plat-
form that includes publicly interactive features 
that allow for arranging the sale or purchase of 
goods, or that enables a person other than an 
operator of the 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 pro-
duced without compliance with all applicable 
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Federal, State, and local health and safety reg-
ulations 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 plat-
form that uses the platform to arrange for the 
sale, purchase, payment, or shipping of goods.’’. 
SEC. 3. MATERIAL MISREPRESENTATIONS IN TAKE-DOWN 
NOTICES. 
(a) AMENDMENT.—The Trademark Act of 1946 is 
amended by inserting after section 32 (15 U.S.C. 1114), 
the following new section: 
‘‘SEC. 32A. MATERIAL MISREPRESENTATIONS IN TAKE- 
DOWN NOTICES. 
‘‘(a) CIVIL LIABILITY.—Any person who knowingly 
makes any material misrepresentation in a notice to an 
electronic commerce platform that a counterfeit mark was 
used in a listing by a third-party seller for goods that im-
plicate health and safety shall be liable in a civil action 
for damages by the third-party seller that is injured by 
such misrepresentation, as the result of the electronic 
commerce platform relying upon such misrepresentation 
to remove or disable access to the listing, including tem-
porary removal or disablement. 
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‘‘(b) ACTION
BY ELECTRONIC COMMERCE PLAT-
FORM.— 
‘‘(1) AUTHORITY
TO
BRING
ACTION.—If a 
third-party seller who otherwise could bring an ac-
tion under subsection (a), consents and declines to 
file suit, an electronic commerce platform may bring 
an action under subsection (a) against a person who 
knowingly made a material misrepresentation in 10 
or more notices to the platform alleging that a coun-
terfeit mark was used in a listing by a third-party 
seller for goods that implicate health and safety. 
‘‘(2) CONSENT BY THIRD-PARTY SELLER RE-
QUIRED.—Consent shall be obtained in writing from 
each third-party seller to which the notices covered 
by the civil action were directed. 
‘‘(3) CONTENTS OF CONSENT.—The consent by 
a third-party seller shall be made in specific ref-
erence to a particular notice after the notice has 
been filed with the electronic commerce platform and 
removal or disablement has occurred. 
‘‘(c) STATUTORY DAMAGES.—Any person who brings 
a claim under this section may elect, at any time before 
final judgment is rendered by the trial court, to recover, 
instead of actual damages, statutory damages in the 
amount of— 
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‘‘(1) not less than $2,500 or more than 
$15,000 per notice containing a knowing, material 
misrepresentation; or 
‘‘(2) if aggravating circumstances exist, not less 
than $15,000 or more than $75,000 per notice con-
taining a knowing, material misrepresentation. 
‘‘(d) DEFINITIONS.—In this section: 
‘‘(1) COUNTERFEIT MARK.—The term ‘counter-
feit mark’ has the meaning given that term in sec-
tion 34(d)(1)(B). 
‘‘(2) 
ELECTRONIC
COMMERCE
PLATFORM; 
GOODS
THAT
IMPLICATE
HEALTH
AND
SAFETY; 
THIRD-PARTY SELLER.—The terms ‘electronic com-
merce platform’, ‘goods that implicate health and 
safety’, and ‘third-party seller’ have the meaning 
given those terms in section 32(4)(F).’’. 
(b) TECHNICAL AND CONFORMING AMENDMENT.— 
Section 35(a) of The Trademark Act of 1946 (15 U.S.C. 
1117(a)) is amended by inserting after ‘‘under section 
43(a) or (d),’’ the following: ‘‘a violation under subsection 
(a) or (b) of section 32A,’’. 
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SEC. 4. EFFECTIVE DATE. 
This Act, and the amendments made by this Act, 
shall take effect on the date that is 1 year after the date 
of the enactment of this Act. 
Æ 
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