Running an E-Commerce Counterfeit Enforcement Program: A Practitioner's Guide to Test Buys, TROs, Asset Freezes, and Platform Takedowns
By Casey Scott McKay ·
This guide is the operational half of the Marksy article on Schedule A litigation, and it treats litigation as the last of eight layers rather than the first. It builds a complete e-commerce counterfeit enforcement program in fifteen stages, beginning with measurement - because a program that cannot state its recurrence rate cannot tell whether anything it does is working - and ending with the metrics that justify next year's budget. Its center is the test buy: a detailed protocol covering purchase, capture, chain of custody, and the comparison declaration that is the single most important exhibit in any counterfeit case. It supplies a triage rule that separates counterfeits from gray-market and legitimate goods before a notice goes out, a takedown workflow sized to volume with a false-positive discipline that protects platform tooling access, the full Schedule A filing package with the evidentiary showing a skeptical judge now expects, and post-order execution and settlement administration. It closes with realistic budgets at three program scales and the governance questions a brand should ask the firm running its enforcement.
IP and Technology > Internet | Guide | Published 27 May 2024 - Updated 2 March 2025 | Casey Scott McKay - marksy.us
Summary. This guide is the operational half of the Marksy article on Schedule A litigation, and it treats litigation as the last of eight layers rather than the first. It builds a complete e-commerce counterfeit enforcement program in fifteen stages, beginning with measurement — because a program that cannot state its recurrence rate cannot tell whether anything it does is working — and ending with the metrics that justify next year's budget. Its center is the test buy: a detailed protocol covering purchase, capture, chain of custody, and the comparison declaration that is the single most important exhibit in any counterfeit case. It supplies a triage rule that separates counterfeits from gray-market and legitimate goods before a notice goes out, a takedown workflow sized to volume with a false-positive discipline that protects platform tooling access, the full Schedule A filing package with the evidentiary showing a skeptical judge now expects, and post-order execution and settlement administration. It closes with realistic budgets at three program scales and the governance questions a brand should ask the firm running its enforcement.
Keywords: test buy protocol · chain of custody counterfeit · comparison declaration · brand registry enrollment · cbp recordation training · counterfeit detection monitoring · takedown at scale · false positive rate · schedule a complaint package · ex parte tro motion · asset freeze proportionality · expedited discovery order · default judgment package · settlement administration · program metrics · days to recurrence · gray market triage · seller identity disclosure · enforcement budget
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