Enforcing Against Platforms, Landlords, and Service Providers: A Practitioner's Guide to Secondary Trademark Liability
By Casey Scott McKay ·
This guide is the operational half of the Marksy article on contributory and vicarious trademark liability, and it assumes you know the Inwood test and why Tiffany v. eBay requires specific knowledge. It runs an intermediary enforcement matter through thirteen stages, from mapping which service providers actually touch the infringement to negotiating the cooperation agreement that is usually worth more than the judgment. Its center is the knowledge-creating notice - the letter that converts a platform, landlord, or processor from a protected bystander into a party with contemporary knowledge of particular infringers - and the linkage investigation that makes such a letter possible. It supplies model notice language, a per-category escalation ladder, complaint paragraphs pleaded to the elements, document requests and Rule 30(b)(6) topics aimed at system architecture rather than at individual listings, and the willful blindness proof structure that Omega v. 375 Canal made viable. The defense half sequences the intermediary's answers in the order that ends cases cheapest, and explains which internal documents decide these cases before any brief is written.
IP and Technology > Trademarks | Guide | Published 17 February 2026 - Updated 17 April 2026 | Casey Scott McKay - marksy.us
Summary. This guide is the operational half of the Marksy article on contributory and vicarious trademark liability, and it assumes you know the Inwood test and why Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010) requires specific knowledge. It runs an intermediary enforcement matter through thirteen stages, from mapping which service providers actually touch the infringement to negotiating the cooperation agreement that is usually worth more than the judgment. Its center is the knowledge-creating notice — the letter that converts a platform, landlord, or processor from a protected bystander into a party with contemporary knowledge of particular infringers — and the linkage investigation that makes such a letter possible. It supplies model notice language, a per-category escalation ladder, complaint paragraphs pleaded to the elements, document requests and Rule 30(b)(6) topics aimed at system architecture rather than at individual listings, and the willful blindness proof structure that Omega SA v. 375 Canal, LLC, 984 F.3d 244 (2d Cir. 2021) made viable. The defense half sequences the intermediary's answers in the order that ends cases cheapest, and explains which internal documents decide these cases before any brief is written.
Keywords: knowledge-creating notice · seller linkage evidence · contributory infringement pleading · willful blindness discovery · platform 30(b)(6) topics · repeat infringer policy discovery · landlord lease covenant · payment processor demand · print on demand direct liability · rule 65(d) non-party order · brand protection cooperation agreement · intermediary escalation ladder · marketplace notice program · secondary liability motion to dismiss · counterfeit warehouse enforcement · notice recordkeeping · platform defense playbook · ip exception section 230 · statutory damages contributory
This is premium Marksy content — the full document is available to subscribers.