Secondary Trademark Infringement Liability in the E-Commerce Setting, 72635-72637 [2020-25163]
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Federal Register / Vol. 85, No. 220 / Friday, November 13, 2020 / Notices
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[FR Doc. 2020–25129 Filed 11–12–20; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No. PTO–T–2020–0035]
Secondary Trademark Infringement
Liability in the E-Commerce Setting
Patent and Trademark Office,
Department of Commerce.
ACTION: Request for comments.
AGENCY:
On January 24, 2020, the
Department of Homeland Security
(DHS) released its Report to the
President of the United States titled
‘‘Combating Trafficking in Counterfeit
and Pirated Goods’’ (DHS Report). The
report responded to the April 3, 2019,
Presidential Memorandum titled
‘‘Memorandum on Combating
Trafficking in Counterfeit and Pirated
Goods’’ (Presidential Memorandum).
Among the action items identified in the
DHS Report was action 9, titled ‘‘Assess
Contributory Trademark Infringement
Liability for E-Commerce.’’ In order to
implement this action item, the United
States Patent and Trademark Office
(USPTO) is seeking information from
intellectual property rights holders,
online third-party marketplaces and
other third-party online intermediaries,
and other private sector stakeholders, on
the application of the traditional
doctrines of trademark infringement to
the e-commerce setting. More
specifically, the USPTO seeks input on
the application of contributory and/or
vicarious trademark infringement
liability (secondary infringement
liability) to e-commerce.
DATES: Comments must be received by
5 p.m. EST on December 28, 2020.
ADDRESSES: You may submit comments
and responses to the questions below by
one of the following methods:
(a) Electronic Submissions: Submit all
electronic comments via the Federal eRulemaking Portal at https://
www.regulations.gov (at the homepage,
enter PTO–T–2020–0035 in the
‘‘Search’’’ box, click the ‘‘Comment
Now!’’ icon, complete the required
fields, and enter or attach your
comments). The materials in the docket
will not be edited to remove identifying
or contact information, and the USPTO
SUMMARY:
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72635
cautions against including any
information in an electronic submission
that the submitter does not want
publicly disclosed. Attachments to
electronic comments will be accepted in
Microsoft Word or Excel or Adobe PDF
formats only. Comments containing
references to studies, research, and
other empirical data that are not widely
published should include copies of the
referenced materials. Please do not
submit additional materials. If you want
to submit a comment with confidential
business information that you do not
wish to be made public, submit the
comment as a written/paper submission
in the manner detailed below.
(b) Written/Paper Submissions: Send
all written/paper submissions to: United
States Patent and Trademark Office,
Mail Stop OPIA, P.O. Box 1450,
Alexandria, Virginia 22314. Submission
packaging should clearly indicate that
materials are responsive to Docket No.
PTO–T–2020–0035, Office of Policy and
International Affairs, Comment Request;
Secondary Trademark Infringement
Liability in the E-Commerce Setting.
Submissions of Confidential Business
Information: Any submissions
containing confidential business
information must be delivered in a
sealed envelope marked ‘‘confidential
treatment requested’’ to the address
listed above. Submitters should provide
an index listing the document(s) or
information that they would like the
USPTO to withhold. The index should
include information such as numbers
used to identify the relevant
document(s) or information, document
title and description, and relevant page
numbers and/or section numbers within
a document. Submitters should provide
a statement explaining their grounds for
objecting to the disclosure of the
information to the public as well. The
USPTO also requests that submitters of
confidential business information
include a non-confidential version
(either redacted or summarized) of those
confidential submissions that will be
available for public viewing and posted
on https://www.regulations.gov. In the
event that the submitter cannot provide
a non-confidential version of its
submission, the USPTO requests that
the submitter post a notice in the docket
stating that it has provided the USPTO
with confidential business information.
Should a submitter fail to either docket
a non-confidential version of its
submission or post a notice that
confidential business information has
been provided, the USPTO will note the
receipt of the submission on the docket
with the submitter’s organization or
name (to the degree permitted by law)
and the date of submission.
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Federal Register / Vol. 85, No. 220 / Friday, November 13, 2020 / Notices
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FOR FURTHER INFORMATION CONTACT:
Holly Lance, USPTO, Office of Policy
and International Affairs, at
Holly.Lance@uspto.gov or 571–272–
9300. Please direct media inquiries to
the USPTO’s Office of the Chief
Communications Officer at 571–272–
8400.
SUPPLEMENTARY INFORMATION: The DHS
Report describes how the rapid growth
of e-commerce platforms, ‘‘further
catalyzed by third-party online
marketplaces connected to the
platforms, has revolutionized the way
products are bought and sold.’’ DHS
Report at 7, available at https://
www.dhs.gov/sites/default/files/
publications/20_0124_plcy_counterfeitpirated-goods-report_01.pdf . This
overall growth ‘‘has facilitated online
trafficking in counterfeit and pirated
goods.’’ Id. (The DHS Report addresses
both trademark counterfeiting and
copyright piracy, but action 9, the
subject of this Federal Register Notice
(FRN), is limited to trademark
counterfeiting.) American consumers
shopping on e-commerce platforms now
face a greater risk of purchasing
counterfeits, including goods that
endanger the health and safety of
unsuspecting consumers. The U.S.
Congress has also taken up the issue of
dangerous counterfeits. On March 2,
2020, H.R. 6058, the ‘‘SHOP SAFE Act
of 2020,’’ which addresses the
contributory liability of e-commerce
platforms in relation to counterfeit
goods implicating health and safety, was
introduced in the House of
Representatives.
Historically, counterfeits were
distributed through in-person
transactions, such as those at swap
meets, and by individual sellers, often
on street corners. Today, many
counterfeits are trafficked through ecommerce supply chains in concert
with marketing, sales, and distribution
networks. See DHS Report at 10. While
e-commerce has supported the launch of
thousands of legitimate businesses, it
has also enabled counterfeiters to easily
establish attractive ‘‘store-fronts’’ to
compete with legitimate businesses. See
id. at 11.
The development of the DHS Report
benefitted from extensive interagency
discussion that included DHS, the
Department of Justice, the Office of the
United States Trade Representative, the
Department of Commerce, the Food and
Drug Administration, the Office of the
Intellectual Property Enforcement
Coordinator, and the Department of
State. The DHS Report also benefited
from outreach to, and comments from,
numerous private sector stakeholders,
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Jkt 253001
including responses to the Department
of Commerce’s FRN 2019–14715 titled
‘‘Comment Request; Report on the State
of Counterfeit and Pirated Goods
Trafficking and Recommendations,’’
issued on July 10, 2019. 84 FR 32861.
The FRN requested comments on a
variety of issues drawn from the
Presidential Memorandum. As
summarized in the DHS Report, the
comments relevant to the subject of this
FRN included rights holder assertions
that the present legal landscape for
online secondary liability in the ecommerce space is ‘‘out of date.’’ DHS
Report at 24. In particular, the rights
holders noted, in the brick-and-mortar
economy, contributory infringement
liability has been well developed
through case law for the licensing and
oversight of sellers, but a comparable
regime is largely nonexistent in the ecommerce realm. Id. at 24–25.
Comments were also received from
platforms noting that they have
‘‘invested heavily in proactive efforts to
prevent counterfeits from reaching their
online stores,’’ and several commenters
noted that some platforms have
significant interactions with law
enforcement to combat counterfeits
trafficking. Id. at 25.
The DHS Report includes a section on
‘‘Immediate Action by DHS and
Recommendations for the USG [U.S.
Government].’’ The ninth item, titled
‘‘Assess Contributory Trademark
Infringement Liability for E-Commerce,’’
calls for the Department of Commerce to
seek input from the private sector and
other stakeholders as to the application
of the traditional doctrines of trademark
infringement to the e-commerce setting,
including whether to pursue changes in
the application of the secondary
infringement standards to platforms. See
DHS Report at 33. This FRN seeks
comments on that issue.
Request for Information: The USPTO
requests information from interested
stakeholders, including but not limited
to trademark owners affected by the sale
of counterfeit goods offered through ecommerce platforms and online thirdparty marketplaces and intermediaries.
Respondents may address any, all, or
none of the following questions. Please
identify, where possible, the question(s)
your comments are intended to address.
Respondents may organize their
submissions in any manner. Reminder:
Respondents have the responsibility to
request that any information contained
in a submission be treated as
confidential business information and
must certify that such information is
confidential and would not customarily
be released to the public by the
submitter. Confidential business
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information must be clearly designated
as such and provided only by mail
carrier as described above.
The USPTO welcomes all input
relevant to the application of the
traditional doctrines of secondary
trademark infringement to the ecommerce setting, more specifically
whether to pursue changes in the
application of the secondary
infringement standards to platforms. In
particular, we seek the following
information:
1. Is the doctrine of secondary
infringement liability, as currently
applied by the courts, an effective tool
in addressing the problem of the online
sale of counterfeit goods? If not, please
identify the shortcomings in this
approach to combatting counterfeits
sold online, including whether the
shortcomings are general to all goods
and modes of e-commerce or whether
they are specific to a particular type of
goods or e-commerce.
2. Have you pursued or defended
secondary trademark infringement
claims against an e-commerce platform,
online third-party marketplace, or other
online third-party intermediary where
the claim was that the intermediary
facilitated the sale of counterfeit goods,
including counterfeit goods offered by a
third-party seller? If so, what challenges
did you face in pursuing or defending
these claims under a secondary
infringement theory, and what was the
result?
3. If you have chosen not to pursue a
potential claim or defend against a
claim for secondary trademark
infringement against an e-commerce
platform, online third-party
marketplace, or other online third-party
intermediary for reasons related to the
current interpretation of the doctrine of
secondary infringement, please explain
how your decision-making was affected
by the state of the law and how a
different interpretation might have led
to a different decision.
4. To the extent you have identified
shortcomings in the current application
of the doctrine of secondary
infringement in your answers to the
above questions, please explain how
you would recommend resolving those
shortcomings.
a. For all types of recommendations,
please identify their scope, including
the type of goods or e-commerce
affected. Where appropriate, please
prioritize your recommendations.
b. If your recommendation includes
implementation in steps and/or over
time, please identify each step and the
contemplated timeframe for
implementation.
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Federal Register / Vol. 85, No. 220 / Friday, November 13, 2020 / Notices
5. Please provide any studies or other
information in your possession that
demonstrate whether or not a change in
the law of secondary liability for
trademark counterfeiting with respect to
e-commerce platforms, online thirdparty marketplaces, and other online
third-party intermediaries would be
effective in reducing online sales of
counterfeit goods, or whether it would
pose any risks.
6. Are there any other areas of law or
legal doctrines that could help inform or
supplement the standard for secondary
trademark infringement to reduce online
sales of counterfeit goods?
Dated: November 6, 2020.
Andrei Iancu,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2020–25163 Filed 11–12–20; 8:45 am]
BILLING CODE 3510–16–P
COMMITTEE FOR PURCHASE FROM
PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
Procurement List; Additions and
Deletions
Committee for Purchase From
People Who Are Blind or Severely
Disabled.
ACTION: Additions to and deletions from
the procurement list.
AGENCY:
This action adds products to
the Procurement List that will be
furnished by nonprofit agencies
employing persons who are blind or
have other severe disabilities, and
deletes products and services from the
Procurement List previously furnished
by such agencies.
DATES: Date added to and deleted from
the Procurement List: December 13,
2020.
SUMMARY:
Committee for Purchase
From People Who Are Blind or Severely
Disabled, 1401 S Clark Street, Suite 715,
Arlington, Virginia, 22202–4149.
FOR FURTHER INFORMATION CONTACT:
Michael R. Jurkowski, Telephone: (703)
603–2117, Fax: (703) 603–0655, or email
CMTEFedReg@AbilityOne.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
jbell on DSKJLSW7X2PROD with NOTICES
Additions
On 4/17/2020, the Committee for
Purchase From People Who Are Blind
or Severely Disabled published a notice
of proposed addition to the Procurement
List. This notice is published pursuant
to 41 U.S.C. 8503 (a)(2) and 41 CFR 51–
2.3.
VerDate Sep<11>2014
17:19 Nov 12, 2020
Jkt 253001
After consideration of the material
presented to it concerning capability of
qualified nonprofit agencies to provide
the products and impact of the
additions on the current or most recent
contractors, the Committee has
determined that the products listed
below are suitable for procurement by
the Federal Government under 41 U.S.C.
8501–8506 and 41 CFR 51–2.4.
Regulatory Flexibility Act Certification
I certify that the following action will
not have a significant impact on a
substantial number of small entities.
The major factors considered for this
certification were:
1. The action will not result in any
additional reporting, recordkeeping or
other compliance requirements for small
entities other than the small
organizations that will furnish the
product(s) and service(s) to the
Government.
2. The action will result in
authorizing small entities to furnish the
product(s) and service(s) to the
Government.
3. There are no known regulatory
alternatives which would accomplish
the objectives of the Javits-WagnerO’Day Act (41 U.S.C. 8501–8506) in
connection with the product(s) and
service(s) proposed for addition to the
Procurement List.
End of Certification
Accordingly, the following products
are added to the Procurement List:
Product(s)
NSN(s)—Product Name(s):
8920–01–E62–6404—Rice, Long
Grain, Parboiled, White, 4/10 lb.
Bags
8920–01–E62–6405—Rice, Long
Grain, Parboiled, Brown, 4/10 lb.
Bags
Designated Source of Supply:
VisionCorps, Lancaster, PA
Mandatory For: Department of Defense
Contracting Activity: Defense Logistics
Agency, DLA Troop Support
Distribution: C-List
Deletions
On 10/9/2020, the Committee for
Purchase From People Who Are Blind
or Severely Disabled published notice of
proposed deletions from the
Procurement List. This notice is
published pursuant to 41 U.S.C. 8503
(a)(2) and 41 CFR 51–2.3.
After consideration of the relevant
matter presented, the Committee has
determined that the product(s) and
service(s) listed below are no longer
suitable for procurement by the Federal
Government under 41 U.S.C. 8501–8506
and 41 CFR 51–2.4.
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72637
Regulatory Flexibility Act Certification
I certify that the following action will
not have a significant impact on a
substantial number of small entities.
The major factors considered for this
certification were:
1. The action will not result in
additional reporting, recordkeeping or
other compliance requirements for small
entities.
2. The action may result in
authorizing small entities to furnish the
product(s) and service(s) to the
Government.
3. There are no known regulatory
alternatives which would accomplish
the objectives of the Javits-WagnerO’Day Act (41 U.S.C. 8501–8506) in
connection with the product(s) and
service(s) deleted from the Procurement
List.
End of Certification
Accordingly, the following products
and services are deleted from the
Procurement List:
Product(s)
NSN(s)—Product Name(s):
8415–01–494–4607—Cover,
Parachutists’ and Ground Troops’
Helmet, All Services, Snow
Camouflage, XL
Designated Source of Supply: Mount
Rogers Community Services Board,
Wytheville, VA
Contracting Activity: DLA Troop
Support, Philadelphia, PA
Service(s)
Service Type: Janitorial/Minor
Maintenance
Mandatory for: U.S. Post Office,
Courthouse and Customs House,
301 Simonton Street, Key West, FL
Designated Source of Supply: Brevard
Achievement Center, Inc.,
Rockledge, FL
Contracting Activity: Public Buildings
Service, Acquisition Division/
Services Branch
Service Type: Janitorial/Custodial
Mandatory for: U.S. Courthouse and
Customhouse, 1114 Market Street,
St. Louis, MO
Designated Source of Supply: MGI
Services Corporation, St. Louis, MO
Contracting Activity: General Services
Administration, FPDS Agency
Coordinator
Service Type: Janitorial/Custodial
Mandatory for: Social Security
Administration Building: 1530 4th
Street, Peru, IL
Contracting Activity: General Services
Administration, FPDS Agency
Coordinator
Service Type: Grounds Maintenance
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]]>Agencies
[Federal Register Volume 85, Number 220 (Friday, November 13, 2020)]
[Notices]
[Pages 72635-72637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25163]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No. PTO-T-2020-0035]
Secondary Trademark Infringement Liability in the E-Commerce
Setting
AGENCY: Patent and Trademark Office, Department of Commerce.
ACTION: Request for comments.
-----------------------------------------------------------------------
SUMMARY: On January 24, 2020, the Department of Homeland Security (DHS)
released its Report to the President of the United States titled
``Combating Trafficking in Counterfeit and Pirated Goods'' (DHS
Report). The report responded to the April 3, 2019, Presidential
Memorandum titled ``Memorandum on Combating Trafficking in Counterfeit
and Pirated Goods'' (Presidential Memorandum). Among the action items
identified in the DHS Report was action 9, titled ``Assess Contributory
Trademark Infringement Liability for E-Commerce.'' In order to
implement this action item, the United States Patent and Trademark
Office (USPTO) is seeking information from intellectual property rights
holders, online third-party marketplaces and other third-party online
intermediaries, and other private sector stakeholders, on the
application of the traditional doctrines of trademark infringement to
the e-commerce setting. More specifically, the USPTO seeks input on the
application of contributory and/or vicarious trademark infringement
liability (secondary infringement liability) to e-commerce.
DATES: Comments must be received by 5 p.m. EST on December 28, 2020.
ADDRESSES: You may submit comments and responses to the questions below
by one of the following methods:
(a) Electronic Submissions: Submit all electronic comments via the
Federal e-Rulemaking Portal at https://www.regulations.gov (at the
homepage, enter PTO-T-2020-0035 in the ``Search''' box, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments). The materials in the docket will not be edited
to remove identifying or contact information, and the USPTO cautions
against including any information in an electronic submission that the
submitter does not want publicly disclosed. Attachments to electronic
comments will be accepted in Microsoft Word or Excel or Adobe PDF
formats only. Comments containing references to studies, research, and
other empirical data that are not widely published should include
copies of the referenced materials. Please do not submit additional
materials. If you want to submit a comment with confidential business
information that you do not wish to be made public, submit the comment
as a written/paper submission in the manner detailed below.
(b) Written/Paper Submissions: Send all written/paper submissions
to: United States Patent and Trademark Office, Mail Stop OPIA, P.O. Box
1450, Alexandria, Virginia 22314. Submission packaging should clearly
indicate that materials are responsive to Docket No. PTO-T-2020-0035,
Office of Policy and International Affairs, Comment Request; Secondary
Trademark Infringement Liability in the E-Commerce Setting.
Submissions of Confidential Business Information: Any submissions
containing confidential business information must be delivered in a
sealed envelope marked ``confidential treatment requested'' to the
address listed above. Submitters should provide an index listing the
document(s) or information that they would like the USPTO to withhold.
The index should include information such as numbers used to identify
the relevant document(s) or information, document title and
description, and relevant page numbers and/or section numbers within a
document. Submitters should provide a statement explaining their
grounds for objecting to the disclosure of the information to the
public as well. The USPTO also requests that submitters of confidential
business information include a non-confidential version (either
redacted or summarized) of those confidential submissions that will be
available for public viewing and posted on https://www.regulations.gov.
In the event that the submitter cannot provide a non-confidential
version of its submission, the USPTO requests that the submitter post a
notice in the docket stating that it has provided the USPTO with
confidential business information. Should a submitter fail to either
docket a non-confidential version of its submission or post a notice
that confidential business information has been provided, the USPTO
will note the receipt of the submission on the docket with the
submitter's organization or name (to the degree permitted by law) and
the date of submission.
[[Page 72636]]
FOR FURTHER INFORMATION CONTACT: Holly Lance, USPTO, Office of Policy
and International Affairs, at [email protected] or 571-272-9300.
Please direct media inquiries to the USPTO's Office of the Chief
Communications Officer at 571-272-8400.
SUPPLEMENTARY INFORMATION: The DHS Report describes how the rapid
growth of e-commerce platforms, ``further catalyzed by third-party
online marketplaces connected to the platforms, has revolutionized the
way products are bought and sold.'' DHS Report at 7, available at
https://www.dhs.gov/sites/default/files/publications/20_0124_plcy_counterfeit-pirated-goods-report_01.pdf . This overall
growth ``has facilitated online trafficking in counterfeit and pirated
goods.'' Id. (The DHS Report addresses both trademark counterfeiting
and copyright piracy, but action 9, the subject of this Federal
Register Notice (FRN), is limited to trademark counterfeiting.)
American consumers shopping on e-commerce platforms now face a greater
risk of purchasing counterfeits, including goods that endanger the
health and safety of unsuspecting consumers. The U.S. Congress has also
taken up the issue of dangerous counterfeits. On March 2, 2020, H.R.
6058, the ``SHOP SAFE Act of 2020,'' which addresses the contributory
liability of e-commerce platforms in relation to counterfeit goods
implicating health and safety, was introduced in the House of
Representatives.
Historically, counterfeits were distributed through in-person
transactions, such as those at swap meets, and by individual sellers,
often on street corners. Today, many counterfeits are trafficked
through e-commerce supply chains in concert with marketing, sales, and
distribution networks. See DHS Report at 10. While e-commerce has
supported the launch of thousands of legitimate businesses, it has also
enabled counterfeiters to easily establish attractive ``store-fronts''
to compete with legitimate businesses. See id. at 11.
The development of the DHS Report benefitted from extensive
interagency discussion that included DHS, the Department of Justice,
the Office of the United States Trade Representative, the Department of
Commerce, the Food and Drug Administration, the Office of the
Intellectual Property Enforcement Coordinator, and the Department of
State. The DHS Report also benefited from outreach to, and comments
from, numerous private sector stakeholders, including responses to the
Department of Commerce's FRN 2019-14715 titled ``Comment Request;
Report on the State of Counterfeit and Pirated Goods Trafficking and
Recommendations,'' issued on July 10, 2019. 84 FR 32861. The FRN
requested comments on a variety of issues drawn from the Presidential
Memorandum. As summarized in the DHS Report, the comments relevant to
the subject of this FRN included rights holder assertions that the
present legal landscape for online secondary liability in the e-
commerce space is ``out of date.'' DHS Report at 24. In particular, the
rights holders noted, in the brick-and-mortar economy, contributory
infringement liability has been well developed through case law for the
licensing and oversight of sellers, but a comparable regime is largely
nonexistent in the e-commerce realm. Id. at 24-25. Comments were also
received from platforms noting that they have ``invested heavily in
proactive efforts to prevent counterfeits from reaching their online
stores,'' and several commenters noted that some platforms have
significant interactions with law enforcement to combat counterfeits
trafficking. Id. at 25.
The DHS Report includes a section on ``Immediate Action by DHS and
Recommendations for the USG [U.S. Government].'' The ninth item, titled
``Assess Contributory Trademark Infringement Liability for E-
Commerce,'' calls for the Department of Commerce to seek input from the
private sector and other stakeholders as to the application of the
traditional doctrines of trademark infringement to the e-commerce
setting, including whether to pursue changes in the application of the
secondary infringement standards to platforms. See DHS Report at 33.
This FRN seeks comments on that issue.
Request for Information: The USPTO requests information from
interested stakeholders, including but not limited to trademark owners
affected by the sale of counterfeit goods offered through e-commerce
platforms and online third-party marketplaces and intermediaries.
Respondents may address any, all, or none of the following
questions. Please identify, where possible, the question(s) your
comments are intended to address.
Respondents may organize their submissions in any manner. Reminder:
Respondents have the responsibility to request that any information
contained in a submission be treated as confidential business
information and must certify that such information is confidential and
would not customarily be released to the public by the submitter.
Confidential business information must be clearly designated as such
and provided only by mail carrier as described above.
The USPTO welcomes all input relevant to the application of the
traditional doctrines of secondary trademark infringement to the e-
commerce setting, more specifically whether to pursue changes in the
application of the secondary infringement standards to platforms. In
particular, we seek the following information:
1. Is the doctrine of secondary infringement liability, as
currently applied by the courts, an effective tool in addressing the
problem of the online sale of counterfeit goods? If not, please
identify the shortcomings in this approach to combatting counterfeits
sold online, including whether the shortcomings are general to all
goods and modes of e-commerce or whether they are specific to a
particular type of goods or e-commerce.
2. Have you pursued or defended secondary trademark infringement
claims against an e-commerce platform, online third-party marketplace,
or other online third-party intermediary where the claim was that the
intermediary facilitated the sale of counterfeit goods, including
counterfeit goods offered by a third-party seller? If so, what
challenges did you face in pursuing or defending these claims under a
secondary infringement theory, and what was the result?
3. If you have chosen not to pursue a potential claim or defend
against a claim for secondary trademark infringement against an e-
commerce platform, online third-party marketplace, or other online
third-party intermediary for reasons related to the current
interpretation of the doctrine of secondary infringement, please
explain how your decision-making was affected by the state of the law
and how a different interpretation might have led to a different
decision.
4. To the extent you have identified shortcomings in the current
application of the doctrine of secondary infringement in your answers
to the above questions, please explain how you would recommend
resolving those shortcomings.
a. For all types of recommendations, please identify their scope,
including the type of goods or e-commerce affected. Where appropriate,
please prioritize your recommendations.
b. If your recommendation includes implementation in steps and/or
over time, please identify each step and the contemplated timeframe for
implementation.
[[Page 72637]]
5. Please provide any studies or other information in your
possession that demonstrate whether or not a change in the law of
secondary liability for trademark counterfeiting with respect to e-
commerce platforms, online third-party marketplaces, and other online
third-party intermediaries would be effective in reducing online sales
of counterfeit goods, or whether it would pose any risks.
6. Are there any other areas of law or legal doctrines that could
help inform or supplement the standard for secondary trademark
infringement to reduce online sales of counterfeit goods?
Dated: November 6, 2020.
Andrei Iancu,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2020-25163 Filed 11-12-20; 8:45 am]
BILLING CODE 3510-16-P
