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February 05, 2020 Feature

Organized IP Crime

H. Jared Doster and Paul J. Reilly

©2020. Published in Landslide, Vol. 12, No. 3, January/February 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Your client, which has a significant online retail presence, has a small department that keeps track of customer reviews for its products on all major online third-party platforms, e.g., Amazon, eBay, etc. Recently, this department reported to the chief marketing officer that customer reviews for one of the client’s highest-margin products, which previously averaged across all platforms at 4.5 stars out of 5, recently dropped to 4.1 stars. Other high-margin products are starting to decline in ratings as well. After a deeper dive, the department finds that the number of 1-star ratings has increased exponentially in the last four months, with accompanying customer reviews along the lines of the following:

I’ve ordered [the product] for years because I love the quality . . . it worked every time I used it. But my recent purchases are way worse quality than before. The construction seems a lot cheaper and the color is slightly off. I’m guessing [your client] has changed manufacturers. I don’t know why companies have to keep screwing up their products like this.

At least one customer review includes a photo showing a side-by-side comparison of the recently purchased product with a previously purchased product. That comparison reveals that the recent purchase is a different color and cheaper quality. Other 1-star reviews are much less informative, such as “total crap, save ur $40 and spend it elsewhere,” but the message remains the same.

Your client investigates its authorized manufacturers and determines that the quality and color of their production has not changed. However, an investigator visits every physical location in the company’s global supply chain on behalf of your client, and discovers that boxes of products of below-grade quality are in warehouses across the supply chain. Although the client’s authorized manufacturers demonstrate that these are not from their facilities, the boxes bear legitimate labels and packaging of the authorized manufacturers with proper return addresses. Further leg work shows that the counterfeit goods came from an East Asian company, an entity reportedly connected to organized crime and with ties to terrorist organizations.

The client comes to you, an intellectual property (IP) lawyer, and asks you whether there is any available legal recourse. How do you respond? The following briefly explores the evolution of counterfeiting and some potential avenues of attack.

A Brief History of Counterfeiting

Decades ago, counterfeiters operated only in local markets and largely focused on counterfeiting high-end luxury goods, bootlegged movies, and the like.1 Today, counterfeiting is a global industry that affects practically any product with a brand that consumers recognize: soaps, shampoos, cosmetics, razors, batteries, cigarettes, alcohol, tools, detergent, film, light bulbs, insecticides, automobile parts, pharmaceutical drugs, etc.2 In the last two decades, the rise of online third-party retailers has allowed the counterfeit goods industry to expand into a global market.

The U.S. government estimates that the global counterfeit market grew 1,700 percent between 1998 and 2008.3 And the International AntiCounterfeiting Coalition (IACC) estimates that it has grown 10,000 percent in the past two decades.4 The estimated size of the annual global market for counterfeit goods ranges from $200 billion to $1 trillion.5 The large range arises from disagreement as to what constitutes a counterfeit good and the difficulty inherent in such measurements.6 A 2016 report by the Organisation for Economic Co-operation and Development (OECD) estimated that the 2013 global trade of counterfeit and pirated goods represented 2.5 percent of world trade, which it valued at $461 billion; this ranks higher than the nominal GDP of most countries of the world.7

The Role of Criminal Organizations

Since the early 1990s, global trade liberalization has promoted all forms of trade—both legal and illegal. According to the NATO Economic Committee, the end of the cold war and subsequent liberalization of global trade opened up new business opportunities for organized crime, including human trafficking, trafficking stolen goods, and IP crime.8 It appears that all of the major global criminal organizations have diversified their operations to include IP crime.9

Criminal organizations have turned to IP crime because the margins are high, the startup costs are low, distribution is easy, and the risk is reasonably low. Indeed, the profit margin of a kilo of cocaine for an importer/wholesaler is estimated to be 300 percent, whereas the profit margin for pirated Microsoft software can be as high as 900 percent.10 Startup costs for a pirated software enterprise can be as low as a $500 computer with internet access.11 Counterfeit goods can be slipped into the legitimate stream of commerce much easier than illegal drugs. And punishment for IP crimes has traditionally been less harsh than punishment for drug crimes. Such advantages further support the growth of counterfeiting.

How Do Criminal Organizations Commit IP Crimes?

Before the internet, criminals obtained IP from current and former employees with trade secrets or other know-how. Today, a well-run counterfeiting operation often begins with cybertheft. Criminal organizations can hack into corporate databases and steal all of the information required to run their operation: trade secrets, manufacturing process designs, product designs, technical specifications, corporate information, employee information, shipping labels, logos, etc. In one example, the counterfeiters had such sophisticated operations that their factory was nearly an exact replica of the hacked legitimate factory.12

With enough information, the counterfeiters essentially can steal the identity of legitimate manufacturers and their employees, thereby allowing the counterfeiters to look like the real McCoy and slip their illicit goods into the supply chain. Counterfeiters use simple software to forge labels, packaging, documentation, authentication devices, and logos. As a result, counterfeit goods enter the global supply chain without the legitimate business knowing about it until much later, often from customer reviews and complaints. Even if the IP owner discovers the counterfeiter and blocks such illegitimate products from entering the supply chain, the counterfeiter can look for another hole in the chain, simply start over with another shipment, or hack into another company’s database and restart the process.13 Over time, law enforcement agencies have taken ever-increasing notice of the counterfeit goods industry because of its growth in scale.

U.S. Government Action on Organized IP Crime

In the last two decades, Congress and the executive branch gradually took notice of global IP crime, resulting in published reports, public testimony, and some new legislation and regulation.14 In late 1996, Congress passed the Anticounterfeiting Consumer Protection Act (ACPA), which increased criminal, civil, and administrative enforcement powers against counterfeit goods in the United States.15 In 2003, the Bush administration established the Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), replacing the Immigration and Naturalization Service (INS). In 2012, the Obama administration created the Interagency Trade Enforcement Center (ITEC) to serve as a forum for different federal agencies to coordinate actions against unfair trade practices by countries like China and to enforce trade laws. Following the first year of his administration, President Trump made the protection of U.S. IP a cornerstone of his administration, including in his 2017 memorandum for the U.S. Trade Representative,16 in his multiple 2018 orders to levy tariffs against imported Chinese goods,17 and in his 2018 adoption of WIPO’s World Intellectual Property Day.18

Most recently, on April 3, 2019, President Trump issued a memorandum on combating trafficking in counterfeit and pirated goods (President’s Memorandum), stating that “[p]reventing the manufacture, importation, and sale of counterfeit and pirated goods is a priority for Federal law enforcement agencies” and that “[e]xisting efforts within the Federal Government to deter online trafficking in counterfeit and pirated goods through third-party intermediaries should be expanded and enhanced.”19

The President’s Memorandum states that “[w]ithin 210 days [specifically, October 30, 2019] . . . the Secretary of Homeland Security, in coordination with [several listed federal agencies], shall prepare and submit a report to the President through the Assistant to the President for Economic Policy and the Assistant to the President for Trade and Manufacturing Policy.”20 Among other things, this report will do the following:

  • “Analyze available data and other information to develop a deeper understanding of the extent to which online third-party marketplaces . . . are used to facilitate the importation and sale of counterfeit and pirated goods . . . .”
  • “Evaluate the existing policies and procedures of third-party intermediaries relating to trafficking in counterfeit and pirated goods . . . .”
  • “Identify appropriate administrative, statutory, regulatory, or other changes, including enhanced enforcement actions, that could substantially reduce trafficking in counterfeit and pirated goods or promote more effective law enforcement regarding trafficking in such goods.”
  • “Identify appropriate guidance that agencies may provide to third-party intermediaries to help them prevent the importation and sale of counterfeit and pirated goods.”
  • “Identify appropriate . . . changes that would enable agencies, as appropriate, to more effectively share information regarding counterfeit and pirated goods . . . with intellectual property rights holders, consumers, and third-party intermediaries.”21

The President’s Memorandum states that within 30 days of submitting this report (specifically, November 29, 2019), Homeland Security would publish a public version in the Federal Register.22 However, as of December 4, it appears that this report has not yet published, although indications are that it will eventually publish. President Trump’s assistant for manufacturing and trade policy, Peter Navarro, stated on November 24 that this report will issue “in the coming months.”23 The U.S. Patent and Trademark Office24 and CBP25 recently remarked on their significant involvement in the effort, which further indicates that the gears are turning.

The President’s Memorandum does not say what will occur after the report publishes, but it is likely that it will spur the promulgation of new regulations across federal agencies. For example, in response to the President’s Memorandum, some agencies already have amended the Federal Acquisition Regulation, which governs much of the federal government’s procurement program. The new regulation requires Department of Defense contractors and subcontractors to report counterfeit or suspected counterfeit electronic parts to the Government-Industry Data Exchange Program (GIDEP), which expands the already-existing role of the GIDEP.26

What Can Your Client Do?

Knowing that the federal government appears to be upping the ante on fighting the epidemic of IP crime, what can you the IP lawyer tell your client? Here are some things to keep in mind.

There Are No International Courts or Agencies That Can Help You

Since the sale of counterfeit goods is an international enterprise, one might imagine that there might be some kind of international organization that would prosecute counterfeiters, but this is not the case. There are small international institutions involved in the subject of “international criminal law,” but this area pertains to gross and systematic violations of human rights such as genocide and war crimes.27 Since there is no true international enforcement mechanism, your client will likely have to turn to domestic legal regimes for a solution.

Seek Enforcement in WTO Member States

The members of the World Trade Organization (WTO) account for over 96 percent of world trade, 96 percent of world GDP, and 90 percent of the world population.28 As a rule of thumb, counterfeiters tend to operate out of China, Brazil, Panama, Greece, and Turkey, all of which are WTO member states. This is useful to know because WTO member states are bound by a multilateral treaty called the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).29 The TRIPS Agreement requires WTO member states to implement three types of IP rights enforcement: civil enforcement (Articles 42–49), criminal enforcement (Article 61), and border enforcement (Articles 51–60).

It is likely that your client’s entire global enterprise falls within the purview of the WTO and your client should consider petitioning the appropriate civil, criminal, and border enforcement institutions in each relevant WTO member state. You can begin researching the details of how to enforce trademarks in such foreign states through online databases such as the World Trademark Review.30 To that point, the remainder of this article will focus on the big picture of international trademark enforcement, which may guide your research in such databases.

TRIPS Agreement—Civil Enforcement

TRIPS Articles 42, 44, and 45 state the following:

[All WTO members] shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. . . .

 

The judicial authorities shall have the authority to order a party to desist from an infringement, inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. . . .

 

The judicial authorities shall have the authority to order the infringer to pay the right holder damages . . . .

Your client may consider pursuing infringement litigation in the domestic courts of any WTO member state, but doing so will likely require your client to have a solid compliance program across WTO member states. For example, in the U.S., copyrights must be registered with the U.S. Copyright Office before one can sue for copyright infringement in federal courts.31 Similarly, in China, trademarks must be registered with the China Trademark Office before one can sue for trademark infringement in Chinese civil courts.

Even if your client were to have such a compliance program, and managed to win damages from a domestic court, the odds are that such damages would not be recoverable because counterfeiters know where to hide their money. As in most trademark/counterfeiting cases, the primary form of relief is an injunction to stop the bleeding. On this note, China is a bit unusual in that its courts and customs can issue injunctions against the export of counterfeit goods, which appears to go beyond the requirements of Article 44.32

TRIPS Agreement—Border Measures

TRIPS Article 51 states the following:

[All WTO members] shall . . . adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods.

Given TRIPS, your client may consider lodging “an application in writing” with the competent domestic authorities of a member state. Practically speaking, border or customs enforcement tends to be the most cost-effective state-enforcement option. However, your client should know that it may take time to determine the competent authority and the procedure for submitting a written application. Article 51 does not specify how the member states are to implement border enforcement measures, only that they must implement a minimum level of border enforcement measures. Therefore, a member state could designate any government institution (e.g., court, agency, magistrate, etc.) as the competent authority to receive an application from your client for border enforcement.33

In the U.S., the competent authority is CBP, which receives written applications online through its Intellectual Property Rights e-Recordation (IPRR) website. Also, CBP administers a database, the Intellectual Property Rights Search (IPRS—pronounced “eye-priss”), where the public can look up all previous registrations.34 In China, the competent authority is the General Administration of Customs (China Customs). Like CBP, IP rights must be registered with China Customs before enforcement measures can begin.

Furthermore, many jurisdictions lack the institutional competence to implement a modern border enforcement system for identifying and detaining counterfeit goods. In the early 1990s, it took CBP over six years to develop a functioning IP enforcement system.35 Countries with weak economies or institutions may not have an effective enforcement system.

TRIPS Agreement—Criminal Enforcement

TRIPS Article 61 states the following:

[All WTO members] shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offense. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed willfully and on a commercial scale.

There are three elements to note here. First, these infringements must be “willful.” Second, criminal penalties are presently required only for trademark and copyright violations. Patent violations, presumably falling under “other cases of infringement,” are not required to be criminally sanctioned. Third, the infringements must be “on a commercial scale.” A WTO dispute panel interpreted this phrase to mean “counterfeiting or piracy carried on at the magnitude or extent of typical or usual commercial activity with respect to a given product in a given market.”36 The WTO panel provided no further description of how to ascertain “typical or usual” commercial activity for a given product in a given market.

In the U.S., the Department of Justice, by way of federal prosecutors, is responsible for enforcing federal criminal IP laws. The American Criminal Law Review annually publishes an updated list of all criminal IP causes of action in the U.S., which includes a succinct analysis of each cause of action.37

However, criminal enforcement is a difficult path. It may not be easy to identify the “criminal procedures” of a foreign jurisdiction if the criminal justice system is opaque to outside observers. Even if you can identify the criminal procedures, the government may not be interested in investigating and prosecuting your client’s case. And even if it does, it is likely that your client will lose control of the issue because your client cannot interfere with a government investigation.

Private Enforcement by Third-Party Intermediaries

As an alternative to state enforcement, private industry actors have developed methods of combatting counterfeiters.

Arguably, the commercial intermediaries (i.e., online retailers, shippers, search engines, advertisers, payment providers, and other service providers) are in the best position to stop the flow of counterfeit goods.38 Perhaps this is why the President’s Memorandum focuses on “online third-party marketplaces and other third party intermediaries” and their “policies and procedures . . . relating to trafficking in counterfeit and pirated goods.”39

Such “policies and procedures” include reporting procedures and even investigation services for combating the sale of counterfeit and pirated goods. For example, eBay (which owns PayPal) has two separate programs combating IP infringement. The eBay Global Asset Protection (GAP) team has 55 investigators working worldwide alongside law enforcement for the purpose of reducing the sale of counterfeit goods.40 The eBay Verified Rights Owner Program (VeRO) removes listings of counterfeit goods based on complaints filed through its website.41 Visa Inc.’s program for monitoring electronic merchants will terminate merchant accounts that are tied to counterfeit goods.42 Merchants that are terminated for just cause are listed in the Visa Merchant Trace System (VMTS), to the extent permitted by local law, for future reference.43 Many other internet companies have similar programs, such as Amazon,44 Google,45 Microsoft,46 Yahoo,47 and Alibaba.48

If your client sells products through Amazon stores, then it should determine whether it is eligible for enrollment in Project Zero. In February 2019, in response to lawsuits claiming that Amazon was failing to reduce sales of counterfeit goods, Amazon launched a three-pronged initiative called Project Zero. First, invited companies have the power to remove counterfeit listings without contacting Amazon first. Second, sellers are able to attach a unique code to each product, allowing Amazon to scan it and determine that it is legitimate. Third, Amazon’s machine learning infrastructure takes data from the above two prongs, along with other available data, and uses it to continuously scan Amazon stores for suspected counterfeit goods. As promising as this initiative sounds, it remains to be seen how successful it will be.49

Help from Trade Associations

Your client may be connected to an industry-specific trade association that has access to anticounterfeiting or antipiracy resources. Trade associations have connections to counterfeiting investigation services, offer pamphlets explaining best practices for securing your clients supply chain, provide updates on IP laws, and provide the opportunity for cooperation with other industry members in reducing the number of counterfeit and pirated goods.

For example, the Motion Picture Association of America has an antipiracy division called the “Content Protection” department, which assists association members in securing the distribution of movies across the globe,50 and has investigation units stationed in the U.S., Brussels, Canada, Brazil, Belgium, and Hong Kong.51 This division uses a combination of civil and criminal actions to stop the flow of pirated movies, such as takedown notices, site blocking, and action against intermediaries.52 As another example, the Semiconductor Industry Association has an anticounterfeiting group that publishes white papers on best practices for securing the semiconductor supply chain.53

There are also anticounterfeiting organizations that are not specific to any trade. IACC membership includes major corporations, law firms, investigative firms, product security firms, other trade associations, and government agencies.54

Conclusion

So, what options does your client have? Your client can turn to domestic legal regimes of WTO member states by filing civil complaints in domestic courts, submitting written applications for border enforcement to the competent authorities, and reporting to the domestic criminal justice institutions. Also, your client may turn to private industry enforcement bodies for private enforcement and assistance.

With that said, counterfeiting is a billion-dollar industry that is unlikely to be eliminated, now or in the immediate future, so IP owners must stay vigilant and work hand in hand with counsel, administrative agencies, law enforcement, and the courts to protect their valuable goodwill and reputation in the marketplace.

Endnotes

1. Hedi Nasheri, Addressing Global Scope of Intellectual Property Law 14–15 (Nov. 2004) (unpublished report prepared for the U.S. Department of Justice), https://www.ncjrs.gov/pdffiles1/nij/grants/208384.pdf.

2. Id. at 15.

3. Peggy Chaudry & Alan Zimmerman, Protecting Your Intellectual Property Rights: Understanding the Role of Management, Governments, Consumers and Pirates 9–10 (2013).

4. Id.

5. Id.

6. Id.

7. Org. for Econ. Co-operation & Dev., Trade in Counterfeit and Pirated Goods: Mapping the Economic Impact 11 (2016), https://read.oecd-ilibrary.org/governance/trade-in-counterfeit-and-pirated-goods_9789264252653-en#page1.

8. Kees Zijlstra, Econ. Comm., N. Atl. Treaty Org. Parliamentary Assembly, Transnational Organised Crime—An Escalating Threat to the Global Market para. 18 (1998).

9. United Nations Office on Drugs & Crime, Focus on the Illicit Trafficking of Counterfeit Goods and Transnational Organized Crime (2014), https://www.unodc.org/documents/counterfeit/FocusSheet/Counterfeit_focussheet_EN_HIRES.pdf.

10. Michael M. DuBose, Criminal Enforcement of Intellectual Property Laws in the Twenty-First Century, 29 Colum. J.L. & Arts 481, 484 (2006).

11. Id.

12. Nat’l Intellectual Prop. Rights Coordination Ctr., Intellectual Property Violations: A Report on Threats to United States Interests at Home and Abroad 7 (2011) [hereinafter NIPRCC Report].

13. Nasheri, supra note 1, at 10, 16, 27–29.

14. See, e.g., The Links between Intellectual Property Crime and Terrorist Financing: Hearing Before the H. Comm. on Int’l Relations, 108th Cong. (2003) (statement of Ronald K. Noble, Secretary Gen., INTERPOL); Comm’n on the Theft of Am. Intellectual Prop., The IP Commission Report (2013), http://www.ipcommission.org/report/IP_Commission_Report_052213.pdf; NIPRCC Report, supra note 12.

15. See Anticounterfeiting Consumer Protection Act Law and Legal Definition, USLegal, https://definitions.uslegal.com/a/anticounterfeiting-consumer-protection-act (last visited Dec. 10, 2019).

16. Presidential Memorandum for the United States Trade Representative (Aug. 14, 2017), https://www.whitehouse.gov/presidential-actions/presidential-memorandum-united-states-trade-representative.

17. See Press Release, Office of the U.S. Trade Representative, President Trump Announces Strong Actions to Address China’s Unfair Trade (Mar. 22, 2018), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/march/president-trump-announces-strong; see also Statement from the President (Sept. 17, 2018), https://www.whitehouse.gov/briefings-statements/statement-from-the-president-4.

18. President Donald J. Trump Proclaims April 26, 2018, as World Intellectual Property Day (Apr. 26, 2018), https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-proclaims-april-26-2018-world-intellectual-property-day.

19. Memorandum on Combating Trafficking in Counterfeit and Pirated Goods § 1(c)–(d) (Apr. 3, 2019), https://www.whitehouse.gov/presidential-actions/memorandum-combating-trafficking-counterfeit-pirated-goods.

20. Id. § 2(a).

21. Id. § 2(b).

22. Id. § 2(c).

23. Peter Navarro & Vishal Amin, Navarro & Amin: Trump Administration Protects Consumers by Keeping Dangerous Counterfeit Goods Out of US, FOX News (Nov. 24, 2019), https://www.foxnews.com/opinion/navarro-amin-trump-administration-protects-consumers-by-keeping-dangerous-counterfeit-goods-out-of-us.

24. Comment Request; Report on the State of Counterfeit and Pirated Goods Trafficking and Recommendations, 84 Fed. Reg. 32,861 (July 10, 2019).

25. Commercial Customs Operations Advisory Comm., Report of the Work of the COAC Subcommittee on Intelligent Enforcement 7 (2019), https://www.cbp.gov/sites/default/files/assets/documents/2019-Nov/IE%20-%20COAC%20%20Executive%20Summary.pdf.

26. Federal Acquisition Regulation: Reporting of Nonconforming Items to the Government-Industry Data Exchange Program, 84 Fed. Reg. 64,680 (Nov. 22, 2019).

27. Routledge Handbook of International Criminal Law 1 (William A. Schabas & Nadia Bernaz eds., 2011).

28. Accession in Perspective, World Trade Org., https://www.wto.org/english/thewto_e/acc_e/cbt_course_e/c1s1p1_e.htm (last visited Dec. 10, 2019).

29. Agreement on Trade-Related Aspects of Intellectual Property Rights art. 1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 318 [hereinafter TRIPS Agreement]; see also Frequently Asked Questions about TRIPS, World Trade Org., https://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm (last visited Dec. 10, 2019).

30. World Trademark Rev., https://www.worldtrademarkreview.com (last visited Dec. 10, 2019).

31. See Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).

32. Erick Robinson, Why You Should Protect and Enforce Your IP in China, IP Stars (July 10, 2017), https://www.ipstars.com/NewsAndAnalysis/Article-Why-you-should-protect-and-enforce-your-IP-in-China/Index/3849.

33. Timothy P. Trainer, Intellectual Property Enforcement: A Reality Gap (Insufficient Assistance, Ineffective Implementation)?, 8 J. Marshall Rev. Intell. Prop. L. 47, 53 (2008).

34. See IPRS Intellectual Property Rights Search, U.S. Customs & Border Protection, https://iprs.cbp.gov/# (last visited Dec. 10, 2019).

35. Trainer, supra note 33, at 58.

36. Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, ¶ 7.577, WTO Doc. WT/DS3262/R (adopted Mar. 20, 2009) (emphasis added).

37. See, e.g., Intellectual Property Crimes, 53 Am. Crim. L. Rev. 1459 (2016).

38. Office for Harmonization in the Internal Mkt. (OHIM) et al., Infringements of Intellectual Property Rights on the Internet 10 (2014), https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/Knowledge-building-events/Infringements%20of%20Intellectual%20Property%20Rights%20on%20the%20Internet_en.pdf [hereinafter OHIM Report].

39. Memorandum on Combating Trafficking in Counterfeit and Pirated Goods, supra note 19, § 2.

40. OHIM Report, supra note 38, at 10.

41. Verified Rights Owner Program, eBay, http://pages.ebay.com/seller-center/listing/create-effective-listings/vero-program.html (last visited Dec. 10, 2019).

42. OHIM Report, supra note 38, at 11.

43. Visa, Visa Global Acquirer Risk Standards: Visa Supplemental Requirements 37 (2018), https://usa.visa.com/dam/VCOM/download/merchants/visa-global-acquirer-risk-standards.pdf.

44. See Report Infringement, Amazon, https://www.amazon.com/gp/help/reports/infringement (last visited Dec. 10, 2019).

45. See Counterfeit Goods Complaint Form, Google Ads, http://services.google.com/inquiry/aw_counterfeit (last visited Dec. 10, 2019).

46. See Notices of Infringement, Microsoft, https://www.microsoft.com/info/cpyrtInfrg.aspx (last visited Dec. 10, 2019).

47. See Copyright and Intellectual Property Policy, Verizon Media, https://www.verizonmedia.com/policies/us/en/verizonmedia/ip/index.html (last updated Oct. 2019).

48. See Intellectual Property Rights (IPR) Protection Policy, Alibaba, https://rule.alibaba.com/rule/detail/2049.htm (last updated Oct. 9, 2019).

49. See Amazon Project Zero, https://brandservices.amazon.com/projectzero (last visited Dec. 10, 2019).

50. See Content Protection Best Practices, Motion Picture Ass’n Am., http://www.mpaa.org/content-security-program (last visited Dec. 10, 2019).

51. OHIM Report, supra note 38, at 10.

52. Id.

53. Anti-Counterfeiting, Semiconductor Industry Ass’n, https://www.semiconductors.org/policies/anti-counterfeiting (last visited Dec. 10, 2019).

54. See Our Members, Int’l AntiCounterfeiting Coalition, http://www.iacc.org/membership/members (last visited Dec. 10, 2019).

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H. Jared Doster is an associate at AZA Law in Houston, Texas. He specializes in trial practice in both intellectual property and commercial matters.

Paul J. Reilly is firmwide chair of the Branding, Advertising & Copyright section of the IP department at Baker Botts LLP in Dallas, Texas.