Online Trademark Enforcement Toolkit: Platform Notices, Test Purchase Records, and Contributory Liability Demands

Summary. This toolkit collects the working documents of online trademark enforcement, each introduced by its purpose, its owner, and when to use it, and followed by drafting commentary tied to the governing statutes and cases. The evidence templates come first: a triage worksheet that sorts listings into counterfeit, gray market, altered, and lawfully resold goods, a listing capture log, test purchase instructions for investigators, a test purchase record with a chain-of-custody log, a product examination report, and a declaration form under 28 U.S.C. § 1746. The notice templates follow: listing-level platform notices, an account-level escalation request, and the enforcement notice log that becomes the central exhibit in any contributory infringement dispute. The demand templates include a contributory liability letter to a marketplace or host built on the Inwood and Tiffany v. eBay knowledge standard, variant paragraphs for landlords, payment processors, ad networks, and print-on-demand platforms, a preservation demand, a demand letter to an identified seller, and a keyword advertising letter to a competitor. For the other side of the table, the toolkit provides a seller's appeal, a brand owner's retraction, and an intermediary's response letter with a notice-handling protocol, and it ends with a Schedule A defendant chart, an FAQ, and practical takeaways.

Online trademark cases are won on paper that someone made months before the complaint: the capture with a timestamp, the parcel opened on video, the notice that named a listing instead of complaining about a marketplace. This toolkit is that paper. Every template is meant to be copied, adapted to the matter, and checked against the platform's current forms and the forum's rules.

The short answer

• Evidence comes first. The triage worksheet, capture log, test purchase record, examination report, and declaration turn a listing into proof. Every later notice and letter cites them by reference number.
• Notices must be specific. A notice that names the registration, the listing, the seller, and the reason is the unit of enforcement, and the notice log that records each response is the exhibit that decides contributory liability.
• Letters to intermediaries must identify particular sellers and ask for particular action. Liability requires inducement or continued service to someone the intermediary knows or has reason to know is infringing, Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982), and general knowledge of counterfeiting is not enough, Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010). A general complaint creates nothing.
• The other side's paper is here too: a seller's appeal with proof of authenticity, a brand owner's retraction of a mistaken notice, and an intermediary's response that shows it investigated and acted.

How to use this toolkit

Each template states its purpose, its owner, and when to use it, then gives the template and a short drafting commentary. Bracketed text in capitals is to be filled in. Use one numbering system across every document: L- for listings, C- for captures, TB- for test purchases, N- for notices, and D- for demand letters, so that a declaration, a notice, and a chart can all point to "TB-014" and mean the same box. The sample entries use Fernhill Skin, the invented serum brand from the worked example in Trademark Liability Online: Keyword Advertising, Marketplaces, and Contributory Infringement After Tiffany v. eBay. The order of tasks is in the Online Marketplace Trademark Enforcement Checklist: A Practical Checklist, and the narrative walk-through is in Enforcing Trademarks Against Online Sellers and Platforms: A Practical Guide.

Template 1: Enforcement triage worksheet

Purpose: sort every suspect listing into the right legal category and the right tool before anyone sends a notice. Owner: the enforcement paralegal, reviewed weekly by counsel. When to use: each time monitoring results arrive.

Drafting commentary. The one-sentence basis is the discipline that keeps a program honest. It forces the reviewer to say why a listing is counterfeit rather than merely unauthorized, and it stops genuine goods from being reported: resale of genuine, unaltered goods is lawful, Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947); Sebastian International, Inc. v. Longs Drug Stores Corp., 53 F.3d 1073 (9th Cir. 1995), while materially different goods are not genuine, Societe des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633 (1st Cir. 1992). Label the worksheet as prepared at counsel's direction in anticipation of litigation, which may qualify it for work-product protection under Fed. R. Civ. P. 26(b)(3), but assume the facts in it, and anything a witness relies on, will be produced.

Template 2: Listing capture log

Purpose: a contemporaneous record of every capture, sufficient to authenticate it years later. Owner: the person making the captures, never the trial lawyer. When to use: every capture, logged the same day.

Drafting commentary. The foundation for a capture is usually testimony from the person who made it, Fed. R. Evid. 901(b)(1), or evidence that the capture process produces an accurate result, Rule 901(b)(9); records generated by an electronic process can be self-authenticated by certification under Fed. R. Evid. 902(13). Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), walks through each route. Hash values let the capturer testify that the exhibit is the file made that day. A capture proves what a page said, not who controls it; tie the storefront to a defendant through payments, shipping records, or platform records, because a page bearing a name is not proof of authorship, United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). Keep lawyers off the capture desk so trial counsel is never a necessary witness. See Capturing the Web: A Practitioner's Guide to Authenticating Website Screenshots as Evidence in Federal Court.

Template 3: Test purchase instructions to the investigator

Purpose: written instructions that keep test purchases lawful, ethical, and usable. Owner: supervising counsel. When to use: before the first purchase in each matter, and again when the scope changes.

PRIVILEGED AND CONFIDENTIAL: ATTORNEY WORK PRODUCT

To: [INVESTIGATOR] From: [COUNSEL] Re: Test purchases, [MATTER] Date: [DATE]

1. Scope. Purchase one unit from each listing on Attachment A, in the order listed, up to a total of $[BUDGET].
2. Identity. Use only the purchasing account and payment card assigned to you for this matter. Do not use any account associated with [BRAND], and do not identify yourself as acting for [BRAND].
3. Conduct. Complete an ordinary consumer purchase. Do not ask the seller about authenticity, counterfeiting, [BRAND], or any dispute. Answer routine questions (size, color, shipping) as an ordinary buyer would. Do not communicate with any person you know to be represented by a lawyer in this matter.
4. Before purchase. Capture the listing, the seller's storefront page, and the seller-identity disclosure, and log each capture (Template 2).
5. Shipping. Ship to [ADDRESS IN THE INTENDED DISTRICT].
6. Records. Capture the cart, the order confirmation, the payment receipt showing the payee and payment processor, every message, and every shipping notice.
7. Receipt. Photograph the parcel unopened, then open it on continuous video. Keep all packaging. Complete Template 4 and deliver the item to [CUSTODIAN] within [TWO] business days.
8. Do not use, alter, mark, or test the item, return it, or post a review.

Drafting commentary. Purchases by investigators posing as ordinary customers are an accepted technique in trademark cases: "hiring investigators to pose as consumers is an accepted investigative technique, not a misrepresentation," Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999); see also Apple Corps Ltd. v. International Collectors Society, 15 F. Supp. 2d 456 (D.N.J. 1998). Paragraph 3 keeps the purchase within that line and away from the no-contact rule (ABA Model Rule 4.2); the lawyer remains responsible for the investigator's conduct (Model Rule 5.3), and a few states read the deception rule (Model Rule 8.4(c)) more strictly, so check the forum. Paragraph 5 matters because a seller that accepts and ships an order into the forum supplies its own jurisdictional contact, NBA Properties, Inc. v. HANWJH, 46 F.4th 614 (7th Cir. 2022); Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085 (9th Cir. 2023).

Template 4: Test purchase record and chain-of-custody log

Purpose: one record per purchase that ties the item in the evidence locker to the listing, the seller, and the money. Owner: the purchaser (Part A) and every later handler (Part B). When to use: from the moment of purchase until the item is offered in evidence.

Part A: Purchase record

Part B: Chain of custody

Drafting commentary. The record answers the questions a defendant will ask: is this the item the seller shipped, who has touched it, and has anyone changed it? Gaps in custody usually go to weight rather than admissibility in a civil case, but a gap is an invitation to argue that the exhibit is not what it purports to be under Fed. R. Evid. 901(a). Keep the shipping label and the payee name; they are often the best leads to the person behind the storefront and to an account a court can freeze. Where many purchases support a motion, a chart summarizing the records is admissible under Fed. R. Evid. 1006 if the underlying records are made available.

Template 5: Product examination report

Purpose: a short, specific explanation of why an item is not genuine. Owner: a brand employee or consultant who knows the genuine product. When to use: after each test purchase; refresh the exemplar when production changes.

Examination Report E-014

Examiner: [NAME], [TITLE]. [YEARS] years in [QUALITY ASSURANCE / PRODUCT DEVELOPMENT] for [BRAND], with responsibility for [PACKAGING SPECIFICATIONS / LOT-CODE RECORDS]. Items examined: TB-014, received from [CUSTODIAN] on [DATE] under seal [NO.]. Exemplar: genuine unit from lot [LOT], manufactured [DATE].

Feature	Genuine product	TB-014	Significance
Lot code	Format [FORMAT]; every code recorded in the production log	22K19, which was never issued	Strong indicator of counterfeit
Label	[TYPEFACE], registered mark in [COLOR]	Different typeface; color off	Consistent with copied artwork
Closure and dropper	[SPECIFICATION]	Different glass dropper and collar	Not a component [BRAND] has used
Fill weight	[WEIGHT]	[WEIGHT]	Below specification
Contents	[ODOR, COLOR, LAB RESULT]	[OBSERVATION; LAB REF]	[SAFETY NOTE IF ANY]

Conclusion. In my opinion TB-014 is not a genuine [BRAND] product. It bears a mark identical with or substantially indistinguishable from [MARK], U.S. Reg. No. [ ], on [GOODS] covered by that registration.

Drafting commentary. A brand employee who testifies from personal knowledge of the company's own products usually gives lay testimony, but opinions resting on specialized testing or analysis should be treated as expert testimony under Fed. R. Evid. 702 and disclosed accordingly. The conclusion tracks the statutory definition of a counterfeit, a spurious mark identical with or substantially indistinguishable from a registered mark, 15 U.S.C. § 1127. Never quote the whole authentication guide in a report that may be filed publicly; cite one or two features in notices and file the full report under seal or a protective order. For consumables, lab results showing contamination or a different formula support both the counterfeit finding and the irreparable harm showing.

Template 6: Purchaser and examiner declaration

Purpose: sworn testimony for platform escalations, TRO papers, and default judgment motions without a notary. Owner: counsel drafts; the declarant reviews every word. When to use: when evidence must be filed or formally submitted.

DECLARATION OF [NAME] IN SUPPORT OF [MOTION]

I, [NAME], declare:

1. I am [an investigator with ABC Investigations, retained by counsel for Plaintiff]. I have personal knowledge of the facts stated here and could testify to them.
2. On [DATE] at [TIME, TIME ZONE], using [BROWSER AND CAPTURE TOOL], I visited [URL], a listing offered by the storefront "[NAME]" (seller ID [ ]). Exhibit [A] is a true and correct copy of the capture I made at that time (capture C-0412).
3. On [DATE] I purchased one unit from that listing for $[AMOUNT]. The receipt identified the payee as "[PAYEE]." Exhibit [B] is a true and correct copy of the order confirmation and receipt.
4. The order was shipped to [ADDRESS], which is in [DISTRICT]. I received it on [DATE]. Exhibit [C] contains photographs of the unopened parcel and stills from the video I recorded while opening it.
5. On [DATE] I sealed the item in evidence bag [NO.] and delivered it to [CUSTODIAN], as recorded in the chain-of-custody log attached as Exhibit [D].

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [DATE] at [CITY, STATE OR COUNTRY].

[SIGNATURE]

Drafting commentary. 28 U.S.C. § 1746 allows an unsworn declaration wherever federal law permits an affidavit; the form above, which adds "under the laws of the United States of America," is required when the declarant signs outside the United States and is acceptable inside it. A TRO without notice requires specific facts "in an affidavit or a verified complaint," Fed. R. Civ. P. 65(b)(1)(A) (see 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2951 (3d ed.), and for counterfeiting cases 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 30:34 (5th ed.)), and a summary judgment declaration must rest on personal knowledge, Fed. R. Civ. P. 56(c)(4). Keep the purchaser to what the purchaser did and saw; leave the conclusion that the item is counterfeit to the examiner's declaration, which attaches Template 5.

Template 7: Listing-level platform notice

Purpose: the core enforcement notice, written to work in any marketplace form and to serve later as evidence. Owner: the enforcement paralegal; counsel approves the category and basis language. When to use: for each listing in the counterfeit or infringement piles.

Rights owner: [BRAND]. Submitted by: [NAME, TITLE], authorized agent. Mark and registration: [MARK], U.S. Reg. No. [ ], registered [DATE] for [GOODS]. Certificate attached. Listings: [URL / LISTING ID / SELLER NAME / SELLER ID], one per line or on the attached spreadsheet. Category: [COUNTERFEIT] or [TRADEMARK INFRINGEMENT (NOT COUNTERFEIT)]. Basis, counterfeit version: A test purchase from this seller (TB-014, received [DATE]) was examined by [ROLE] and is not genuine: [TWO OR THREE SPECIFIC FEATURES]. The listing uses [MARK] on goods covered by the registration. Basis, infringement version (material differences): The listed product is a version made for [COUNTRY] and differs from the product authorized for sale in the United States under [MARK] in these respects: [DIFFERENCES]. The listing does not disclose these differences. Requested action: remove the listings; [act against the seller account under your repeat infringer policy]; [provide the seller's contact information]. Statement: I have a good-faith belief that the use described is not authorized by the rights owner, its agent, or the law, and the information in this notice is accurate. [ADD ANY CERTIFICATION THE PLATFORM'S FORM REQUIRES, IN ITS OWN WORDS, ONLY IF TRUE.] [SIGNATURE, NAME, CONTACT]

Drafting commentary. The fields map onto every major program: Amazon Brand Registry's violation reporting, eBay VeRO's Notice of Claimed Infringement, Walmart's Brand Portal, TikTok Shop's IP Protection Center, Alibaba's IP Protection Platform, and Etsy's infringement form. Forms change; the content should not. The registration number gives actual notice of registration, which matters for profits and damages under 15 U.S.C. § 1111. Copied product photographs can go through the DMCA form, since they are a copyright problem; Stacy D. Fredrich & Karissa F. Blyth, Protecting and Enforcing IP in the Online Marketplace: A Case Study in Widgets, 31 No. 9 Intell. Prop. & Tech. L.J. 10 (2019), shows how the tools combine. Do not send trademark complaints through a DMCA form: copyright notices have statutory elements under 17 U.S.C. § 512(c)(3) and carry misrepresentation liability under § 512(f). Specificity is the point. Tiffany turned on the fact that eBay removed the listings Tiffany identified; a notice that identifies nothing proves nothing about what the platform knew.

Template 8: Account-level escalation request

Purpose: ask the platform to act against a seller, not just a listing. Owner: the enforcement manager. When to use: after a set number of confirmed counterfeits from one seller, or on any relisting after removal.

Re: Repeat infringement by seller [NAME], seller ID [ ]

Since [DATE], [BRAND] has reported [N] listings from this seller (notices N-0311, N-0347, and N-0402; your references [ ]). [N] test purchases (TB-014, TB-022) were examined and found to be counterfeit. After each removal the seller relisted the same product, most recently on [DATE] (listing [ID]).

We believe the following storefronts are operated by the same person or business: [STOREFRONTS AND IDS], because they share [PRODUCT PHOTOGRAPHS / LISTING TEXT WITH THE SAME ERRORS / RETURN ADDRESS / PAYEE].

We ask that you (1) apply your repeat infringer policy to this account and the linked accounts; (2) remove the active listings on Attachment A; (3) preserve the records described in the enclosed preservation request; and (4) confirm the action taken.

Drafting commentary. eBay's three-strikes suspensions were part of the record that defeated contributory liability in Tiffany; a repeat-infringer policy that exists on paper but is not applied is the copyright lesson of BMG Rights Management (US) LLC v. Cox Communications, Inc., 881 F.3d 293 (4th Cir. 2018). The linking facts do double duty: they justify account-level action now and support joinder under Fed. R. Civ. P. 20 and willfulness later. Item (4) matters most. A written confirmation is useful; silence after a request this specific is better evidence still.

Template 9: Enforcement notice log

Purpose: the single record of what each platform and intermediary was told, when, and what it did. Owner: the enforcement paralegal for brand owners; the trust and safety lead for platforms. When to use: every notice, every response, every silence, entered the day it happens.

Drafting commentary. In a contributory case this log is the case. Tiffany was won on a record of prompt removals; the host in Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936 (9th Cir. 2011), lost on a record of unanswered notices; and the claims against Google in Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012), survived summary judgment in part because Rosetta Stone had sent roughly 200 notices identifying sponsored links for counterfeit software. Keep the log in the regular course of business, not just when a lawsuit looms, so it can qualify as a business record under Fed. R. Evid. 803(6). Platforms should keep the mirror image, because evidence of a routine practice is admissible to show what was done on a particular occasion, Fed. R. Evid. 406. "Days to action" is the column both sides will argue about, so compute it the same way every time.

Template 10: Contributory liability demand to a marketplace or host

Purpose: put an intermediary on notice of specific infringers and ask for specific action, creating either cooperation or the knowledge record. Owner: outside counsel. When to use: when an intermediary reinstates documented sellers, leaves notices unanswered, or keeps serving sellers it has been shown are counterfeiters.

[DATE]

By email and courier

[LEGAL DEPARTMENT, PLATFORM OR HOST]

Re: Continued service to identified counterfeit sellers; [MARK], U.S. Reg. No. [ ]

Dear [NAME]:

We represent [BRAND], owner of the [MARK] registration identified above.

1. What you have been told. Since [DATE], [BRAND] has submitted [N] notices through [PROGRAM] identifying [N] listings by the sellers on Schedule 1. Each notice identified the listing, the seller, and the basis for our conclusion that the goods are counterfeit, including test purchases examined by [ROLE]. Schedule 2 lists each notice, its date, your reference number, and your response, if any.

2. What has happened since. [N] of these sellers remain active. [SELLER X] has been reinstated [N] times after removal. [SELLERS Y AND Z] share [PAYEE / ADDRESS / PRODUCT IMAGES] with accounts you suspended on [DATES]. Test purchases from [SELLERS] on [DATES], after our notices, were again counterfeit.

3. What we ask. Within [TEN] business days, please (a) remove the listings on Schedule 3; (b) apply your repeat infringer policy to the accounts on Schedule 1 and the linked accounts; (c) preserve the records described in the enclosed preservation demand; (d) tell us what action you have taken; and (e) [provide the identity and contact information you hold for the Schedule 1 sellers, or confirm that you will produce it in response to a subpoena].

4. Why we are writing. We recognize that [PLATFORM] has no general duty to police its service for our marks, and that general awareness that counterfeits exist is not a basis for liability. This letter is different. It identifies particular sellers and listings. A service provider that continues to supply its service to sellers it knows or has reason to know are infringing may be liable for their infringement, and deliberately avoiding confirmation of what it has been told is treated as knowledge.

5. Cooperation. We would prefer to resolve this cooperatively and would welcome a call to agree on a reporting protocol for future notices.

Sincerely, [COUNSEL]

Drafting commentary. Paragraph 4 states the law accurately and without bluster, which is what persuades in-house counsel; the supporting cases are collected in 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition §§ 25:17 to 25:20.50 (5th ed.), and the supplier rule appears in Restatement (Third) of Unfair Competition § 27 (1995). The test is Inwood's; Tiffany requires "some contemporary knowledge of which particular listings are infringing or will infringe in the future"; and a defendant may be willfully blind "either to particular transactions or to the identities of infringers," Omega SA v. 375 Canal, LLC, 984 F.3d 244 (2d Cir. 2021). In the Ninth Circuit, willful blindness requires a subjective belief that infringement was likely and deliberate steps to avoid learning of it, Y.Y.G.M. SA v. Redbubble, Inc., 75 F.4th 995 (9th Cir. 2023), and a service provider must have direct control and monitoring of the instrumentality used to infringe, Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980 (9th Cir. 1999), so say what the recipient controls (account suspension, hosting, the payout). Do not threaten Section 230's absence; just know that 47 U.S.C. § 230(e)(2) leaves Lanham Act claims untouched. Every factual sentence must be supportable from the notice log, and the schedules should reproduce the platform's own reference numbers. Send it to the legal department, keep proof of delivery, and calendar the deadline. If the recipient acts, the letter has done its job; if not, it is Exhibit 1.

Template 11: Variant paragraphs for other intermediaries

Purpose: replace paragraphs 1 through 3 of Template 10 when the intermediary is not a marketplace. Owner: outside counsel. When to use: with Template 10.

Landlord or market operator. On [DATES], vendors at [STALL OR UNIT NUMBERS], [PREMISES], sold counterfeit [MARK] goods to our investigators; photographs and receipts are enclosed. [Law enforcement seized counterfeit goods at the premises on DATES.] We ask that you enforce the lease provisions that prohibit illegal sales, [terminate or decline to renew] the tenancies of the vendors identified, and permit our investigators to continue monitoring.

Web host. The websites at [DOMAINS AND IP ADDRESSES], hosted on your servers, offer counterfeit [MARK] goods (captures and test purchases enclosed). We ask that you suspend hosting for these sites under your acceptable use policy.

Payment processor. Merchant account [DESCRIPTOR OR ID] receives payment for sales of counterfeit [MARK] goods at [URLS]. Receipts from test purchases TB-[ ] identify the account as payee. We ask that you terminate processing for these sales under your merchant agreement and card-network rules.

Affiliate or ad network. Ads placed through your network by affiliates [IDS, IF KNOWN] use [MARK] in ad text to sell [GOODS] (captures enclosed). We ask that you instruct every affiliate in your network to stop using [MARK] in ad text and display URLs, and confirm when you have done so.

Print-on-demand platform. Designs [DESIGN IDS] uploaded by [USER] reproduce [MARK]. You print these designs on [GOODS], ship them in your own packaging, and sell them through your site. We ask that you remove the designs, block reuploads of the identified artwork, and confirm the action taken.

Drafting commentary. Landlords and market operators are judged by a landlord's standard drawn from the Restatement (Second) of Torts § 877(c) (see 4 McCarthy § 25:20), with no duty to police but liability for letting a vendor continue once the operator knows or has reason to know of the infringement, Hard Rock Cafe Licensing Corp. v. Concession Services, Inc., 955 F.2d 1143 (7th Cir. 1992); the letter supplies the knowledge, as in Coach, Inc. v. Goodfellow, 717 F.3d 498 (6th Cir. 2013), and Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 932 F.3d 1303 (11th Cir. 2019). For processors, show that the payment is essential to the infringing sale, which distinguishes Gucci America, Inc. v. Frontline Processing Corp., 721 F. Supp. 2d 228 (S.D.N.Y. 2010), from Perfect 10, Inc. v. Visa International Service Ass'n, 494 F.3d 788 (9th Cir. 2007). The network-wide instruction tracks 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013), where one email to all affiliates would have ended the problem. The print-on-demand paragraph describes the facts that can make such a platform a direct infringer, Ohio State University v. Redbubble, Inc., 989 F.3d 435 (6th Cir. 2021).

Template 12: Preservation demand

Purpose: ask an intermediary or a seller to keep the records you will later subpoena or request. Owner: counsel. When to use: enclosed with Templates 8, 10, and 13, and again when suit is filed.

Please preserve, and suspend any routine deletion of, the following records for the accounts on Schedule 1 and any linked accounts, from [DATE] to the present: (1) account registration, identity verification, and certification records, including information collected under 15 U.S.C. § 45f; (2) listing histories, images, and edits; (3) order, sales, and refund records; (4) payment, payout, and bank account records; (5) communications with buyers and with you; (6) login, IP address, and device records; and (7) notices received and actions taken. We expect to seek these records by subpoena or as otherwise permitted.

Drafting commentary. A party that fails to take reasonable steps to preserve electronically stored information faces the measures in Fed. R. Civ. P. 37(e). A nonparty platform usually has no legal duty to preserve on request alone, but most will hold records for a period when asked, and a subpoena under Fed. R. Civ. P. 45 or a court order can require it. Item (1) targets the identity information that the INFORM Consumers Act requires marketplaces to collect and verify for high-volume sellers, which is usually the fastest route to a real name. See Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case and the Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege.

Template 13: Demand letter to an identified online seller

Purpose: stop an identified seller and collect the information that leads upstream. Owner: counsel. When to use: once a seller's name and address are known, by pile.

Re: Sale of counterfeit [MARK] products on [MARKETPLACE], storefront "[NAME]," seller ID [ ]

We represent [BRAND], owner of U.S. Reg. Nos. [ ] for [MARK] covering [GOODS]. On [DATE] our investigator purchased [PRODUCT] from your storefront (order [NO.]). Examination shows it is not genuine: [TWO OR THREE FEATURES].

Selling goods bearing a counterfeit of a registered mark infringes [BRAND]'s rights under 15 U.S.C. § 1114 and exposes the seller to an injunction, profits or damages (trebled for knowing use of a counterfeit), or statutory damages of up to $2,000,000 per counterfeit mark per type of goods for willful use, and, in appropriate cases, attorney's fees. 15 U.S.C. §§ 1116, 1117.

Within [TEN] days, please confirm in writing that you will (1) stop selling [MARK] products not purchased from [BRAND] or its authorized distributors; (2) identify each supplier of those products and the quantities bought and sold since [DATE], with invoices; (3) account for gross revenue from those sales; (4) deliver your remaining inventory to us or certify its destruction; (5) preserve all related records; and (6) sign the enclosed undertaking.

[SETTLEMENT PROPOSAL, LABELED AS A COMPROMISE COMMUNICATION.]

Variant paragraph for gray market goods: "The [PRODUCT] you sell is the version made for [COUNTRY]. It differs from the U.S. product in [DIFFERENCES]. Those differences are material, so the goods are not genuine U.S. goods for trademark purposes and their sale under [MARK] is likely to cause confusion. We do not object to your resale of genuine U.S. products."

Variant paragraph for altered or expired goods: "The units you sell bear [REMOVED OR OBSCURED LOT CODES / EXPIRATION DATES OF (DATES)]. [BRAND]'s quality-control program [DESCRIBE] depends on those codes and dates, and goods sold outside it are not genuine for trademark purposes."

Drafting commentary. Use the pile from Template 1; a counterfeit letter sent to a gray market reseller overstates the claim and invites a fight. The material-differences variant rests on Nestle and on Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067 (10th Cir. 2009); the altered-goods variant on Zino Davidoff SA v. CVS Corp., 571 F.3d 238 (2d Cir. 2009), and Warner-Lambert Co. v. Northside Development Corp., 86 F.3d 3 (2d Cir. 1996), which requires quality-control procedures that are real and actually followed. The remedies paragraph must be accurate: statutory damages are available only for counterfeits (see 87 C.J.S. Trademarks, Etc. § 369), 15 U.S.C. § 1117(c), and destruction of inventory is a court remedy under 15 U.S.C. § 1118, so the letter asks for it rather than claiming it. A threat specific enough to create a real controversy may let the seller file a declaratory judgment action first, MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); a well-founded demand is protected petitioning activity, Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006). Label the settlement paragraph for Fed. R. Evid. 408. For structure and tone, see Drafting a Trademark Cease-and-Desist Letter.

Template 14: Keyword advertising letter to a competitor

Purpose: stop ad copy that uses or impersonates your mark without picking a fight over keyword bidding. Owner: counsel, with the marketing lead supplying captures. When to use: when a competitor's ad text, display URL, or landing page uses your mark, not merely when it bids on it.

Re: Use of QUILLSTONE in [COMPETITOR] search advertising

We represent Quillstone, Inc., owner of U.S. Reg. No. [ ] for QUILLSTONE for scheduling software. Since [DATE], searches for "quillstone" and "quillstone login" have displayed sponsored ads for [COMPETITOR] headed "Quillstone Login | Official Scheduling Site," with the display URL [ ] and a landing page that welcomes "Quillstone users" in Quillstone's colors (captures enclosed).

We are not asking you to stop bidding on QUILLSTONE as a keyword. We are asking that within [SEVEN] days you (1) remove QUILLSTONE from ad headlines, ad text, and display URLs, except in a plainly comparative phrase that names [COMPETITOR] as the advertiser; (2) stop using "official," "login," and similar words that suggest you are Quillstone or affiliated with it; (3) change the landing page so that it identifies [COMPETITOR] and does not use Quillstone's trade dress; and (4) give the same instructions to every agency and affiliate that places ads for you, and confirm when this is done.

Drafting commentary. The letter separates the weak claim from the strong one. Buying a competitor's mark as a keyword, with a clean and labeled ad, rarely infringes, 1-800 Contacts, Inc. v. JAND, Inc., 119 F.4th 234 (2d Cir. 2024); Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011); Lerner & Rowe PC v. Brown Engstrand & Shely LLC, 119 F.4th 711 (9th Cir. 2024). Ad copy that tells searchers they are reaching the mark owner is what makes a keyword claim viable. Asking a competitor to stop bidding is a weaker demand on the merits, and a mutual non-bidding agreement is an agreement among competitors that drew years of FTC litigation in 1-800 Contacts, Inc. v. Federal Trade Commission, 1 F.4th 102 (2d Cir. 2021). The permitted comparative phrase tracks nominative use, Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010). File the ad platform's trademark complaint about the ad text at the same time. For the advertiser's side, see the Trademark Fair Use Toolkit: Nominative Use Guidelines, Comparative Advertising Clearance, and Defense Briefing.

Template 15: Seller appeal and brand owner retraction

Purpose: the two documents that resolve a mistaken or disputed removal. Owner: the seller (15A); the brand owner's enforcement manager (15B). When to use: 15A after a removal the seller believes is wrong; 15B as soon as the brand owner concludes a notice was mistaken.

15A. Seller appeal. Re: Appeal of removal of listing [ID] (complaint [REF]). The removed listing offered genuine [BRAND] [PRODUCT] purchased from [AUTHORIZED DISTRIBUTOR] (invoices enclosed, matching the quantities and dates of our inventory). The units are the U.S. version, unaltered, with original codes and packaging (photographs enclosed). The listing uses [BRAND] only to identify the product, without logos and without any claim of authorization. We ask that the listing be reinstated. We have asked the rights owner to retract its complaint.

15B. Brand owner retraction. Re: Retraction of complaint [REF] concerning listing [ID]. [BRAND] retracts complaint [REF] dated [DATE]. After reviewing [the seller's invoices / a test purchase], we have concluded that the listing [offers genuine goods / does not infringe]. Please reinstate the listing and remove any related account penalty.

Drafting commentary. For sellers, genuine and unaltered goods may be resold under the brand name (the cases are collected in Kurtis A. Kemper, Annotation, Construction and Application of "First Sale Doctrine" in Trademark Law, 71 A.L.R. Fed. 2d 1 (2013)), Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947), and the brand may be used to identify them if the use suggests no sponsorship, New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992). Invoices from unauthorized wholesalers often do not satisfy platforms, and fabricated invoices end accounts and create fraud exposure. Do not adopt the brand as a storefront name; using another's mark to identify your own business gets no special First Amendment screening, Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). For brand owners, a prompt retraction preserves credibility with the platform and limits exposure to tortious interference claims; record it in Template 9. See Responding to a Trademark Cease-and-Desist Letter and Tortious Interference and Unfair Competition Claims Between Businesses.

Template 16: Intermediary response and notice-handling protocol

Purpose: show, in writing and in practice, that an intermediary investigated what it was told and acted. Owner: platform legal or trust and safety; for landlords and processors, their counsel. When to use: on receipt of any demand like Template 10, and as the standing procedure for every notice.

16A. Response to a contributory liability demand. We have received your letter of [DATE] and investigated each seller and listing it identifies. Results: [N] listings removed; [N] accounts suspended under our repeat infringer policy; [N] listings not removed because [the seller documented genuine goods / the notice did not identify the listing], as shown on the enclosed schedule. We have preserved the records described in your letter for [PERIOD]. We will produce seller information in response to valid legal process[, after notice to the seller as our policies provide]. Our trademark reporting tool is at [LOCATION]; reports that identify the listing and the basis for the claim are typically resolved within [TIME].

16B. Notice-handling protocol

Drafting commentary. The protocol is the five practices that made Tiffany a defense: a notice channel, prompt removal, escalation against repeat offenders, proactive detection, and action on red flags about particular sellers. The last is where platforms lose, because deliberately not investigating what you suspect is willful blindness (Omega; Y.Y.G.M.). A court order freezing seller accounts binds those in active concert with the defendants who receive actual notice, Fed. R. Civ. P. 65(d)(2), so the legal-process step must work within a day. Marketplaces also carry INFORM Consumers Act duties to collect, verify, and disclose high-volume seller information, and platforms that make, brand, or ship the goods themselves should review those programs separately (Ohio State University v. Redbubble). Do not lead with Section 230 in a Lanham Act dispute. See the Platform Liability Toolkit: Terms of Service, Notice Procedures, and Litigation Defenses, Running a Platform That Hosts User Content: A Practical Guide, and, for platforms serving European users, the EU Platform Regulation Toolkit: Notice Mechanisms, Reports, and Gatekeeper Obligations.

Template 17: Schedule A defendant chart

Purpose: one chart that proves jurisdiction, joinder, and counterfeit status defendant by defendant. Owner: the litigation associate, built from Templates 2 through 9. When to use: before filing a multi-defendant complaint, and as the exhibit to the TRO and default judgment motions.

Drafting commentary. Each row must stand on its own, because Fed. R. Civ. P. 11 applies to each defendant and courts now test joinder under Fed. R. Civ. P. 20 and sever under Rule 21 when the linking column is thin. The delivery column supports jurisdiction, NBA Properties, Inc. v. HANWJH, 46 F.4th 614 (7th Cir. 2022). The email column supports alternative service under Fed. R. Civ. P. 4(f)(3), Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), once the Hague Service Convention question is answered for each defendant's country. The frozen-balance column informs the statutory damages request under § 1117(c), and fees remain available to a plaintiff that elects statutory damages, Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83 (2d Cir. 2012). Freezes against a nonparty bank's overseas branches raise separate jurisdiction and comity questions, Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014). The chart is a summary under Rule 1006, so keep every underlying record ready. For the practice and its critics, see Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court, and for the discovery motions, the John Doe Litigation Toolkit: Early Discovery Motions, Platform Subpoenas, and Motions to Quash.

Frequently asked questions

Do we need a lawyer to send platform notices? No. Trained staff can send Template 7 notices. Counsel should approve the categories and basis language, and should send Templates 10 through 14 personally.

Are test purchase records privileged? Counsel's instructions and analyses may be work product. The purchases, captures, and goods are evidence you will produce if you rely on them, so create them on the assumption that the other side will read them.

Should we warn a platform before suing a seller on it? Usually no, if the case seeks an ex parte freeze; serve the order instead. If the platform is a potential defendant, the Template 10 letter must come first, because the claim depends on what the platform knew.

What if the platform tells us to resolve a disputed removal with the seller directly? That is the normal outcome when a seller appeals. Move to Template 13 if you can identify the seller, or decide whether the listing belongs in a lawsuit.

Do these templates work outside the United States? The evidence templates do. The notices work in global programs, but the liability rules differ; in the European Union, the Digital Services Act sets notice-and-action duties for platforms.

How long should we keep enforcement records? The Lanham Act has no statute of limitations, and courts apply laches by reference to analogous state periods. Keep the records for at least as long as any claim could be brought, and longer once litigation is reasonably anticipated.

Practical takeaways

• Number everything once (L-, C-, TB-, N-, D-) and use the same references in every notice, declaration, and chart.
• Build the evidence before the notices: capture, buy, examine, declare.
• Write notices that name the registration, the listing, the seller, and the reason.
• Send intermediaries letters that identify particular sellers and ask for particular action, and log the answer or the silence.
• Keep letters accurate; overstated demands lose credibility and create claims.
• If you are on the other side, answer with documents: invoices, a retraction, or a record of what you did.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Related Articles

• Trademark Liability Online: Keyword Advertising, Marketplaces, and Contributory Infringement After Tiffany v. eBay: the doctrine these templates put into practice.
• Unmasking Anonymous Online Speakers: John Doe Subpoenas, the Dendrite and Cahill Tests, and the First Amendment: the standards for identifying anonymous sellers.
• Expungement, Reexamination, and Letters of Protest: The Trademark Modernization Act in Practice: answering bad-faith registrations used to hijack brand programs.
• Trademark Cease-and-Desist Letters: Sending and Responding: A Practical Guide: both sides of the demand letter.

Related Guides

• Enforcing Trademarks Against Online Sellers and Platforms: A Practical Guide: the step-by-step narrative.
• Identifying an Anonymous Defendant Online: A Practical Guide: early discovery and platform subpoenas.
• Choosing the Right Domain Name Dispute Procedure: A Practical Guide: when the counterfeiter runs its own domain.

Related Checklists

• Online Marketplace Trademark Enforcement Checklist: A Practical Checklist: the task list these templates support.
• Authenticating Website Evidence: A Practical Checklist: foundations for captures.
• Litigation Hold and Evidence Preservation Checklist: preserving your own enforcement records.
• Trial Exhibit Preparation Checklist: turning test purchases into exhibits.

Related Toolkits

• Online Brand Protection Toolkit: A Strategic Roadmap and Resource Library: program design.
• Border Enforcement Toolkit: Recordations, Seizure Responses, and Gray Market Programs: Customs forms.
• Register Clearing Toolkit: Nonuse Investigations, Petition Templates, and Post-Registration Audit Responses: clearing the register of bad-faith filings.
• Advanced Domain Dispute Toolkit: URS Complaints, In Rem Pleadings, and Reverse Hijacking Defenses: forms for lookalike storefront domains.
• Trademark Enforcement and Litigation Toolkit: From Watching to Verdict and Appeal: the wider trademark litigation set.