Sec. 3. Material misrepresentations in take-down notices
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/bill/117/hr/5374/ih/section-3A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The Trademark Act of 1946 is amended by inserting after section 32 ( 15 U.S.C. 1114 ), the following new section: 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 implicate 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 temporary removal or disablement.
If a third-party seller who otherwise could bring an action 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 counterfeit mark was used in a listing by a third-party seller for goods that implicate health and safety. Consent shall be obtained in writing from each third-party seller to which the notices covered by the civil action were directed. The consent by a third-party seller shall be made in specific reference to a particular notice after the notice has been filed with the electronic commerce platform and removal or disablement has occurred. 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— not less than $2,500 or more than $15,000 per notice containing a knowing, material misrepresentation; or if aggravating circumstances exist, not less than $15,000 or more than $75,000 per notice containing a knowing, material misrepresentation. In this section: The term counterfeit mark has the meaning given that term in section 34(d)(1)(B). The terms electronic commerce platform , goods that implicate health and safety , and third-party seller have the meaning given those terms in section 32(4)(F). . 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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