Counterfeits and Online Marketplaces

Common situations.

• Counterfeit versions of a product are listed by dozens of anonymous storefronts.
• A shipment of fakes is arriving at the Port of Houston.
• A marketplace removes a seller's listings after a brand owner's complaint.
• A brand owner considers referring a counterfeiter to prosecutors.

The tools.

At the border.

An owner of a federally registered mark may record it with CBP for $190 per class, and the recordation remains in force as long as the registration (19 C.F.R. §§ 133.3, 133.4). CBP may detain imports bearing counterfeit marks, and counterfeit goods are subject to seizure and forfeiture (19 U.S.C. § 1526(e)). Owners can help by giving CBP product identification guides that explain how to tell genuine goods from fakes. Unregistered marks and trade dress can be enforced at the border only through an ITC exclusion order. See Where Trademark Cases Are Heard.

On online marketplaces.

• Brand programs. Marketplaces offer complaint and brand-protection programs with their own eligibility rules and appeals. Amazon's Brand Registry, for example, requires an active registered trademark or an eligible pending application, and the mark must appear on the products or packaging.
• Seller verification. Since June 27, 2023, the INFORM Consumers Act has required online marketplaces to collect, verify, and disclose information about high-volume third-party sellers (those with at least 200 sales and $5,000 in revenue in a 12-month period), to suspend sellers that do not comply, and to give users a way to report suspicious conduct (15 U.S.C. § 45f). That information can help identify defendants.
• Marketplace liability. A marketplace is generally not liable for a seller's counterfeits unless it knows or has reason to know of specific infringing listings and continues to provide its service to them (Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010); Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982)). See Trademark Claims Under Federal and Texas Law.
• For sellers. A seller whose listings are removed should use the platform's appeal process and keep proof that its goods are genuine. See Responding to a Trademark Claim.

In civil court.

Counterfeiting claims bring the strongest civil remedies: ex parte seizure, asset restraints, mandatory trebling in most cases, and statutory damages of up to $2,000,000 per mark per type of goods for willful counterfeiting. See Emergency Relief: TROs, Preliminary Injunctions, and Seizures and Trademark Remedies.

Suits against many online sellers.

In a so-called Schedule A case, a brand owner sues dozens or hundreds of online storefronts in one complaint, listing the defendants in a sealed schedule, and seeks a TRO freezing their marketplace accounts before they learn of the suit. Recent appellate decisions have limited the practice:

Practical points.

• The Hague Service Convention does not apply when a defendant's address is unknown despite reasonable diligence. Courts that have rejected email service have looked closely at whether the plaintiff tried to find a physical address.
• Evidence of actual sales and shipments into the forum, for each defendant, now matters more. See Where Trademark Cases Are Heard.
• A default judgment obtained with defective service can be vacated even after it has been enforced. In Kangol, the seller appeared and moved to vacate about ten months after service, after the judgment had been enforced against its marketplace account.
• Viahart predates Smart Study and Kangol, and this update found no published Fifth Circuit decision on email service under the Hague Service Convention.

Criminal counterfeiting.

• Federal. Intentionally trafficking in goods or services while knowingly using a counterfeit mark is a federal crime. For a first offense, an individual faces up to 10 years in prison and a $2,000,000 fine, and a company up to a $5,000,000 fine; penalties increase for repeat offenses and for counterfeit military goods, drugs, or conduct causing serious injury (18 U.S.C. § 2320).
• Texas. Trademark counterfeiting is a Texas crime, graded by retail value from a Class C misdemeanor (under $100) to a first-degree felony ($300,000 or more). It covers marks registered with the Texas Secretary of State, on the federal Principal Register, or in another state (Tex. Penal Code § 32.23).

A criminal case does not award the owner damages directly, but restitution may be ordered, and a civil suit can proceed separately.

Sources.

• 15 U.S.C. §§ 45f, 1114, 1116(d), 1117(b)-(c).
• 18 U.S.C. § 2320.
• 19 U.S.C. § 1526(e); 19 C.F.R. pt. 133.
• Tex. Penal Code § 32.23.
• Amazon Brand Registry eligibility requirements.
• FTC, INFORM Consumers Act guidance.
• Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010).
• Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982).
• Liu v. Monthly, 170 F.4th 1090 (7th Cir. 2026).
• Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi, 164 F.4th 164 (2d Cir. 2025).
• Kangol LLC v. Hangzhou Chuanyue Silk Imp. & Exp. Co., No. 25-2205 (7th Cir. May 29, 2026).
• Viahart, L.L.C. v. GangPeng, No. 21-40166 (5th Cir. Feb. 14, 2022) (unpublished).

This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.