Proving Contributory Online Trademark Infringement

While estimates of the harm differ greatly among analysts, the sale of counterfeit and knockoff goods has been reported to cost American creators and producers billions of dollars per year. Online infringement harms many facets of the economy: Trademark owners suffer lost sales and lost brand value; consumers receive inauthentic products, or, at worst, dangerous goods; and federal and state governments lose tax revenues and incur law enforcement costs. In many cases, consumers are not fully aware of the nature of a transaction, since such virtual stores have legitimate-sounding domain names, often accept payment through major credit card companies, and run online advertisements from trusted providers ' all portraying the appearance of legitimacy.

As part of the task of policing their marks, many trademark owners maintain a close watch on counterfeit goods on the Internet and take an aggressive stance against unauthorized uses and sales, including bringing suit against sellers of knockoff goods. However, many so-called rogue Web sellers are located abroad and rely solely on digital means to communicate, making it especially difficult to locate and permanently shut them down. As a result, trademark owners have begun to seek recovery from a number of third-party online entities, including Internet service providers, payment processors and online ad network providers, all of whom may play some role (knowingly or unknowingly) in enabling consumers to access an infringing website, purchase content and products, and view advertisements.