March 30, 2022
In the world of brand protection, the biggest current issue faced today, in the U.S., is the sale of counterfeit goods online on e-commerce marketplaces and social media platforms. While this issue has swelled exponentially during the COVID-19 pandemic, the A-CAPP Center has been examining the current tools that are available to brands and consumers to protect against counterfeits through its research and discussion forums. In 2020, the A-CAPP Center analyzed the proposed e-commerce legislation after its initial introduction (UC Davis School of Law: Business Law Journal Congress’s Proposed E-Commerce Legislation for Regulation of Third-Party Sellers: Why It’s Needed and How Congress Should Make It Better, By: John H. Zacharia and Kari Kammel).
The Center continued to explore the proposed e-commerce legislation in its discussion forums through its publications: The Brand Protection Professional (BPP), with articles on Legislative Updates and analysis of Congress’s proposed bills through the beginning of the COVID-19 pandemic as counterfeit sales skyrocketed online.
Following this, the Center published a comprehensive legal analysis of secondary liability for trademark counterfeiting in the US (AIPLA Quarterly Journal: Responsibility for the Sale of Trademark Counterfeits Online: Striking a Balance in Secondary Liability While Protecting Consumers by: Kari Kammel, Jay Kennedy, Daniel Cermak, and Minelli Manoukian). Kammel et al noted:
“…[W]e suggest that courts, policy makers and the legislature keep in mind that this problem of counterfeit sales by third-party sellers is changing rapidly and will continue to do so. As artificial intelligence continues to be used by brands, e-commerce platforms, service providers and even counterfeiters, the landscape will continue to change. We urge lawmakers and others to keep in mind where appropriate guardianship of the consumer and marks are … and apply liability accordingly. While this will continue to shift because of technology that we do not currently have and cannot currently imagine, the general framework of the … [corresponding] duties and liabilities to protect a consumer will apply.”
During this time, the Center has continued to be an advocate for shopping safe online (VIDEO: Shopping Safe Online A-CAPP Center). Because of the Center’s research and involvement in its forums and convenings, Kammel was invited to testify before the House and Senate in 2021 on the proposed pieces of legislation (Written testimony from Kari Kammel, Esq., Assistant Director of Education and Outreach, Michigan State University, Center for Anti-Counterfeiting and Product Protection is available for both hearings).
Additionally, the major counterfeit issues experienced across every sector have been highlighted and explored in depth in the A-CAPP Center’s work. Because the Center is unique in that it is academic and also works with the entire brand protection community and stakeholders, it is able to be an instrumental, neutral, multidisciplinary voice in the fight against counterfeit products for over 13 years. The A-CAPP Center also engages all brand protection stakeholders through its events, professional education and other outreach.
Additional Resources from the A-CAPP Center:
- A-CAPP Report REVISITING THE SHOP SAFE ACT AFTER MARKUP Importance of current features of bill and why some proposed changes might weaken it
- A-CAPP Center’s Report INFORM Consumers Introduction into the America COMPETES Act: How potential changes could create too many loopholes for it to be useful or effective.
About the A-CAPP Center at Michigan State University
The A-CAPP Center is an independent, interdisciplinary evidence-based hub whose activities focus on research, education and outreach designed to assist in protecting brands and products of all industries worldwide. Learn more at a-capp.msu.edu. The A-CAPP Center works with the entire brand protection community, including brands, law enforcement, technology and service providers, and e-commerce providers on our activities. The Brand Protection Professional online magazine just launched its 23rd edition. The Center runs in person and online events and has worked with over 500 brand protection stakeholder companies.