“The foundation of our trademark system predates e-commerce and is not equipped to address the online counterfeiting issues experienced today. While brick-and-mortar stores are generally liable for the products they sell, the same cannot be said about large online third-party marketplaces. Current law does not adequately incentivize third-party marketplaces to take the steps necessary to keep counterfeits off their platforms. Further, this lack of liability results in limited efforts by online platforms to proactively monitor for counterfeits, moving the cost and burden to our members. This landscape makes it difficult for our member brands to pursue trademark infringement claims against these online platforms who facilitate the sale of fake product", stated Steve Lamar, President and CEO of the American Apparel & Footwear Association.

According to AAFA, the proliferation of counterfeits is "becoming a crisis due to the expansion of online third-party marketplaces". And that is why AAFA is calling for changes to the "application of the secondary infringement standards to online platforms”.

AAFA’s submission follows an earlier submission to the US Patent and Trademark Office calling for a consumer awareness campaign to alert Americans to the dangers and prevalence of counterfeit product on trusted online marketplaces and social media platforms. This follows AAFA’s submission to the Office of the US Trade Representative as part of its review of Notorious Markets which listed many online third-party marketplaces as sources of counterfeit product.