Are You Already Creating the Evidence That Could Help Protect Your Brand?

The expansion of online retail has changed not only how brands reach consumers, but also how infringers imitate and distribute branded products. Not surprisingly, rights holders have responded with broad enforcement campaigns against anonymous online sellers, especially in the Northern District of Illinois, which has become a focal point for this category of litigation, referred to as “Schedule A” cases.

“Schedule A” cases are named in reference to the sealed schedule attached to an infringement complaint which identify dozens or even hundreds of defendants comprised of online sellers selling knockoffs and counterfeit products through marketplaces such as Temu, AliExpress, eBay, and Shopify storefronts.

In the last few years, there have been instances of judges dismissing or narrowing these cases. What appears to be changing is not the necessity of these cases, which are a critical tool in anticounterfeiting, but the level of attention courts are giving to procedure and proof. As judges look more closely at joinder, ex parte requests, and evidence tied to particular defendants, brand owners should also focus on a related business issue: whether they are preserving the kinds of records that best show genuine marketplace use, ownership, and recognition of the brand at issue.

In many cases, the most helpful evidence is already being created through ordinary marketing, sales, and brand-management activity. Examples include:

• dated website pages and social media posts showing branded goods or services;
• marketplace listings, product packaging, and advertising materials; and
• records supporting ownership of the asserted intellectual property, including registration certificates, evidence of authorship and first publication, and related assignments and licenses.

This evidence can do more than support an enforcement complaint. It may also strengthen marketplace takedown efforts, inform broader brand-protection planning, support copyright positions, and help establish use in connection with USPTO filings where appropriate.

Brand owners should take care to treat online evidence as part of core IP hygiene, not just as material collected after a dispute begins. In a marketplace where brand presentation is often digital first, careful recordkeeping may affect not only litigation outcomes, but also the strength and credibility of a broader protection strategy.

As scrutiny of online enforcement actions continues, companies may be well served to examine whether their internal practices capture the types of evidence they are likely to need later. Thoughtful coordination across business functions can help ensure that evidence created in the ordinary course of marketing, sales, and e-commerce activity remains accessible and usable if a dispute arises.

Here are some considerations:

• Are you ensuring to preserve dated digital evidence of your brand’s use across websites, social media, listings, and advertising?
• Consider coordinating legal, marketing, and e-commerce teams so ownership, authorship, and use evidence can be collected in a way that is accessible if enforcement becomes necessary. For enforcement in foreign jurisdictions, having quick access to dated evidence of commercialization of the brand and product in the jurisdiction can be key.

Ultimately, as courts place greater emphasis on procedure and proof, the ability to translate everyday digital brand activity into reliable evidence may become a defining feature of effective enforcement.