[As usual, I don\u2019t link to pieces that aren\u2019t worth reading. Indeed, I lament giving the article any attention at all.]<\/p>\n This article adds to the tiny pro-SAD Scheme literature, which appears to be growing inorganically. The last time I covered the genre<\/a>, I mentioned a student note titled \u201cSchedule A Cases. Not Sad at All.\u201d The student-author was clerking for a rightsowner-plaintiff firm that had filed dozens of SAD Scheme cases, but the note didn\u2019t disclose that affiliation. In my opinion, the undisclosed relationship corrodes the note\u2019s credibility.<\/p>\n This article\u2019s disclosed co-authors are an adjunct professor and student affiliated with Michigan State\u2019s \u201cCenter for Anti-Counterfeiting and Product Protection\u201d (the \u201cA-CAPP\u201d center). The article\u2019s SSRN page\u2013but not the piece itself\u2013makes this disclosure:<\/p>\n Funder\u2019s statement<\/p>\n Greer Burns and Crain partially funded the research through a research gift to the Center for Anti-Counterfeiting and Product Protection.<\/p>\n<\/blockquote>\n Greer Burns and Crain is a law firm closely associated with filing SAD Scheme cases. Two of its shareholders (including Amy Ziegler, discussed below) hold officer positions in a recently created vanity \u201cbar association\u201d (the \u201cSAFE Bar Association\u201d) designed to normalize the SAD Scheme. To supplement those efforts, the law firm is funding research that it can and will cite in court filings to help normalize its practices.<\/p>\n Due to Greer Burns\u2019 funding support for the research, I view this article as a shill article. Even though the funding is publicly disclosed somewhere (but not in the article itself), its shillness still corrodes the article\u2019s credibility.<\/p>\n [Note: If the journal knows about Greer Burns\u2019 funding support for the research, I expect the journal\u2019s editors will require the authors to incorporate the funding disclosures in the article itself, and not just display the disclosure on the article\u2019s SSRN page. However, because the disclosure isn\u2019t in the article file posted to SSRN, I\u2019m wondering if the journal\u2019s student editors knew about Greer Burns\u2019 funding support when they accepted the piece for publication?]<\/p>\n If you enjoy consuming shill advocacy, I recommend watching some OG 1980s infomercials instead of reading this article.<\/p>\n In addition to the funder\u2019s statement, the article\u2019s SSRN page (but not the article itself) declares A-CAPP\u2019s purported independence:<\/p>\n WE ARE INDEPENDENT: Our research and related work are independent. Although we raise funding for our research and other activities as a self-sustaining unit at Michigan State University through gifts and contracts, we do not accept funding that would require us to promote a specific viewpoint or perspective. We proactively seek to be knowledgeable about current events and updates in our field and produce research and resource tools applicable in the practice of brand protection.<\/p>\n<\/blockquote>\n I don\u2019t find this declaration believable. A-CAPP bakes the advocacy of \u201ca specific viewpoint or perspective\u201d into the center\u2019s architecture. Per its title, the center is biased towards \u201canti\u201d counterfeiting. My concerns about the center\u2019s structural bias are exacerbated when the center produces a work that commercially benefits a funding supporter.<\/p>\n In addition to my general skepticism about A-CAPP\u2019s self-declared independence, I have questions about the authors\u2019 independence with respect to this article specifically. In the article PDF I downloaded from SSRN, the document properties metadata lists Amy Ziegler as the document\u2019s author:<\/p>\n Amy Ziegler is a shareholder at Greer Burns & Crain who frequently files SAD Scheme cases. She is president of the vanity bar association trying to normalize the SAD Scheme. The article does not list her as a co-author.<\/p>\n I hypothesized several possible explanations for why Amy Ziegler might be listed as the article PDF\u2019s author:<\/p>\n You can decide for yourself which of these hypotheses (or maybe one that didn\u2019t occur to me) seems most plausible to you. To me, this feels like an Occam\u2019s Razor situation.<\/p>\n Related questions: Which of the six hypotheses, if true, would negate the disclosed authors\u2019 self-declarations of \u201cindependence\u201d? And if hypothesis 4, 5, or 6 is true, what should the journal do in response?<\/p>\n * * *<\/p>\n Some of the article\u2019s structural flaws:<\/p>\n 1) In the first paragraph, the article says \u201cWe limit our review to trademark counterfeiting enforcement brought under Schedule A cases.\u201d There are at least two major problems with this framing.<\/p>\n First, according to my (admittedly rough) calculations<\/a>, about 30% of SAD Scheme cases are now copyright and patent cases, which the article completely ignores. So the article makes some sweeping generalizations about the SAD Scheme by ignoring a major chunk of the actual activity taking place in court.<\/p>\n Second, just because a rightsowner-plaintiff claims their case is a trademark \u201ccounterfeiting\u201d case doesn\u2019t mean it\u2019s actually a counterfeiting case. See Prof. Fackrell\u2019s treatment of this point<\/a>. Until a judge has independently and properly reviewed the plaintiff\u2019s assertions, we don\u2019t know whether a particular SAD Scheme litigation involves counterfeiting, \u201ctraditional\u201d trademark enforcement, trademark trolling, trademark bullying, or something else. (The SAD Scheme has been associated with all of these activities). We can only know if a case is truly a \u201ccounterfeiting\u201d case at the end of the judicial process, not the beginning. In other words, SAD Scheme cases pose a classification problem (are they meritorious or not, and if so, on what grounds?) that cannot be answered based solely on the plaintiff\u2019s self-representations.<\/p>\n 2) The article makes many factual claims without citations. I imagine the student journal editors will push back on some of those unsubstantiated fact claims. However, the cite-checking process will surely expose that some claims are factually unsupportable and need to be revised or deleted.<\/p>\n 3) The article repeatedly characterizes the SAD Scheme as equitable and just, which suggests the authors have a very different conception of due process than I do.<\/p>\n These hortatory statements are also tone-deaf to the SAD Scheme\u2019s real-world victimization. See the Bonus 2 appendix below for one victim\u2019s side of the story. The authors unceremoniously and unjustly erase those victims\u2019 experiences from the discourse.<\/p>\n * * *<\/p>\n Rather than do a complete fisking of the article, I\u2019ll critique about 20 lowlights:<\/p>\n __<\/p>\n Shill article<\/strong>: \u201csome argue that online counterfeit sales are overstated and that the majority of Schedule A cases target innocent trademark infringers.\u201d<\/p>\n My comment:<\/strong> My article is the sole citation for the \u201csome\u201d claim, but my article does not support either point.<\/p>\n __<\/p>\n Shill article<\/strong>:\u00a0\u201cThe online sale of counterfeits is often more deceptive than a physical marketplace, where a consumer has a chance to inspect and hold a good before purchase, and exposes any consumer (individual or corporate) who is purchasing branded goods online to potential harm, both physical and financial.\u201d<\/p>\n My comment<\/strong>: [Citations needed].<\/p>\n __<\/p>\n Shill article<\/strong>: \u201cIn cases involving large numbers of third party online sellers who either have not been required to provide identifying information to a platform, have obstructed or falsified information, or whose information is otherwise available [sic], the only information that may be available are their marketplace account credentials or domain names.\u201d<\/p>\n My comment<\/strong>: Producing this information was the point of the INFORM Consumers Act. The article later decries a perceived underenforcement of the INFORM Consumers Act, but the article doesn\u2019t address the degree to which the law redressed this concern.<\/p>\n __<\/p>\n Shill article: <\/strong>\u201cplaintiffs can request that the judge seal the complaint to ensure the sellers do not attempt to move or conceal their assets.\u201d<\/p>\n My comment<\/strong>: The article just claimed that \u201cthe only information that may be available [about the defendants] are their marketplace account credentials or domain names.\u201d In those circumstances, what evidence would a rightsowner-plaintiff have that the sellers will attempt to move or conceal their assets?<\/p>\n __<\/p>\n Shill article: <\/strong>Trying to refute my criticisms of robo-pleading, the article claims \u201cThe use of legal templates is a standard practice among lawyers in the U.S. that serves many purposes including efficiency.\u201d<\/p>\n My comment: <\/strong>It\u2019s fine for lawyers to use templates. However, whatever starting point they use, the lawyers still need to make defendant-specific factual assertions that comport with Rule 11. I\u2019ve seen too many SAD Scheme cases that do not clear that foundational hurdle.<\/p>\n __<\/p>\n Shill article<\/strong>: \u201cdefendants are listed in \u2018Schedule A\u2019 and identified by their domain name, seller alias, or online store name, which is often the only identifying marker that the plaintiff can access without a court order. We argue that this is appropriate.\u201d<\/p>\n My comment:<\/strong> The sentence \u201cWe argue that this is appropriate\u201d is the sum total of the argument supporting its conclusion. High quality stuff.<\/p>\n __<\/p>\n Shill article<\/strong>: The article tries to normalize SAD Scheme joinder: \u201cbefore a suit is filed, the plaintiff has no methods to verify with certainty which online sellers are owned by a single entity or individual, since it cannot access or compel that information from the platforms or website hosts prior to filing a complaint.\u201d<\/p>\n My comment: <\/strong>This is not complicated. If rightsowner-plaintiffs don\u2019t have these facts at the time of filing, then the plaintiffs can\u2019t assert that the defendants have common interests.<\/p>\n __<\/p>\n Shill article<\/strong>:\u00a0\u201cCritics claim, however, that joinder in these cases deprives the court of filing fees. This is an irrelevant argument for rejecting joinder of defendants.\u201d<\/p>\n My comment<\/strong>: I assume I\u2019m one of the \u201ccritics\u201d in this sentence, though the fact claim doesn\u2019t have any citation. I never argued that the filing fees are a basis for rejecting joinder, but I did point out that misjoinder provides an undeserved financial subsidy to rightsowners at taxpayer expense.<\/p>\n __<\/p>\n Shill article<\/strong>: If \u201cplaintiffs filed separate actions for each individual infringement in Schedule A cases, the entire court system would become bogged down.\u201d<\/p>\n My comment<\/strong>: This is an obvious strawman argument because the rightsowners have repeatedly indicated they wouldn\u2019t sue every SAD Scheme defendant if they had to pay the full costs of litigating against them. But also, it\u2019s true that due process is costly and time-consuming.<\/p>\n __<\/p>\n Shill article<\/strong>: \u201cIn the spirit of joinder, a broad definition of \u2018series of transactions or occurrences\u2019 in the context of online trademark counterfeiting is critical for effective enforcement. We do not believe it should be limited to the more narrow readings.\u201d<\/p>\n My comment:<\/strong> Is the goal of the judicial system to enable \u201ceffective enforcement,\u201d or is it to balance multiple competing interests in a manner consistent with due process?<\/p>\n _<\/p>\n Shill article<\/strong>:\u00a0\u201cSchedule A cases often exhibit screenshots evidencing the sale of the alleged counterfeit goods online. The infringement is obvious from the screenshot evidence, which is what Schedule A case evidence standards should be confined to. These are not complex intellectual property disputes between two legitimate companies.\u201d<\/p>\n My comment: <\/strong>Like toddlers, some rightsowner-plaintiffs apparently need to learn how to use their words. A screenshot can provide supporting evidence of infringement, but it always needs explanation. That\u2019s especially true in design patent cases, where a visual comparison between two items (without more) doesn\u2019t prove infringement<\/a>, and when defendants use dictionary words in their product descriptions.<\/p>\n Also, the claim that \u201cThese are not complex intellectual property disputes between two legitimate companies\u201d needs citation. Without further qualification, the generalization is demonstrably false. The only way we know if the defendant is legitimate or not, and if the IP dispute is simple or complex, is if the defendant shows up and tells its story. Otherwise, this fact claim is at best a wild guess. It\u2019s clearly not true in numerous cases I\u2019ve blogged. Instead, rightsowner-plaintiffs can only make this claim consistent with Rule 11 if they do adequate defendant-specific investigations. (Recall, these authors claim the only thing the plaintiffs know about the defendants is the merchant aliases, which isn\u2019t enough to make any inference about the defendant\u2019s legitimacy and the matter\u2019s complexity).<\/p>\n __<\/p>\n Shill article:<\/strong> The article continues to try to justify screenshots as evidence by comparing it to the evidence attached to 512(c)(3) copyright takedown demands: \u201cUnless there is a question as to whether that copyrighted image is valid, notice and takedown requests typically are typically respected and adhered to without requiring further evidence when there is an obvious infringement.\u201d<\/p>\n My comment: <\/strong>Wow, that\u2019s quite an apples-to-oranges analogy. The services don\u2019t honor copyright takedown notices because the screenshots are persuasive evidence of infringement; the services take down content essentially on demand to preserve their 512 safe harbor defense. As a result, DMCA-induced overremovals have been extensively documented<\/a>.<\/p>\n Also, 512 is an extrajudicial process where Congress waived due process requirements, while the SAD Scheme takes place in a judicial system that must comply with due process. So this is an obviously false equivalence.<\/p>\n __<\/p>\n Shill article<\/strong>:\u00a0\u201cIf a judge feels that it is difficult to evaluate the merits of the claim that a plaintiff asserts, instead of refusing to evaluate it, the judge should request additional evidence from the plaintiff in lieu of simply rejecting a claim.\u201d<\/p>\n My comment: <\/strong>Rightsowner-plaintiffs are requesting extraordinary relief in an ex parte TRO proceeding. The defendants aren\u2019t around to contextualize the screenshots or otherwise defend their interests. The screenshots may consist of hundreds of pages. If plaintiffs want the benefits of an ex parte process, they have to do the work to prepare the case properly. The judge isn\u2019t there to do their work for them.<\/p>\n __<\/p>\n Shill article<\/strong>:\u00a0\u201cSchedule A cases address clear-cut instances of sales of counterfeits, where infringement is readily apparent from online sales listings and screenshot evidence.\u201d<\/p>\n My<\/strong> comment<\/strong>: These fact claim have no citation support, nor could they because the claims are obviously overbroad.<\/p>\n __<\/p>\n Shill article:\u00a0<\/strong>\u201cThe inherent nature of trademark counterfeiting online with third-party sellers located outside of the U.S. presents specific facts that make proceeding with a TRO on an ex parte basis appropriate.\u201d<\/p>\n My comment<\/strong>: How do the plaintiffs or the judges know the defendants are outside the US? Recall the article previously said the plaintiffs just know the merchant\u2019s alias. In fact, numerous US defendants have been ensnared in the SAD Scheme.<\/p>\n __<\/p>\n Shill article<\/strong>:\u00a0\u201conline trademark counterfeiters are bad actors and broad injunctive relief is an appropriate remedy.\u201d<\/p>\n My comment<\/strong>: Lawyers who disrespect due process are also bad actors.<\/p>\n __<\/p>\n Shill article<\/strong>: \u201cAllowing for damages and attorney fees reinforces that brand protection must be pursued responsibly, with respect for due process and the equitable treatment of all parties.\u201d<\/p>\n My comment<\/strong>: [Record-scratch] Can we go back over that part where the SAD Scheme allegedly demonstrates \u201crespect for due process and the equitable treatment of all parties\u201d?<\/p>\n __<\/p>\n Shill article<\/strong>: \u201cPotentially due to negative backlash from some scholars, courts have begun to shy away from accepting Schedule A cases as the most equitable and just avenue for plaintiff-rightsholders to protect their marks.\u201d<\/p>\n My comment<\/strong>: I am one of the \u201csome scholars.\u201d My mom would be so proud. However, I only dream of having that much influence over the judicial system LOL. Also, more record-scratches on the \u201cmost equitable and just avenue\u201d assertions. \u201cEquitable\u201d and \u201cjust\u201d to whom?<\/p>\n __<\/p>\n Shill article: <\/strong>\u201cSchedule A cases provide a critical enforcement mechanism\u2014one that balances efficiency with equity, and deterrence with accountability.\u201d<\/p>\n My comment<\/strong>: Again, I ask: \u201cequity\u201d and \u201caccountability\u201d for whom?<\/p>\n * * *<\/p>\n![\"\"](\"https:\/\/blog.ericgoldman.org\/wp-content\/uploads\/2024\/11\/Stop-the-SAD-Scheme-sign.jpg\")
<\/a>I note the posting of a draft article, which (unfortunately) has been accepted for publication by the Fordham Intellectual Property, Media & Entertainment Law Journal, entitled \u201cBeyond the Brick-and-Mortar Paradigm: The Legal and Procedural Foundations of Schedule A Litigation in Combating Online Counterfeiting as Distinct from Traditional Trademark Enforcement.\u201d The article seeks to normalize the SAD Scheme<\/a>.<\/p>\n\n
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<\/a>Fortunately, the American judicial system is built around a venerable and reliable method to evaluate the veracity of plaintiffs\u2019 self-representations: it\u2019s called due process, and we desperately need more of it, not less. The bending or suspension of due process evaluations of plaintiff self-representations is my most fundamental problem with the SAD Scheme.<\/p>\n![\"\"](\"https:\/\/blog.ericgoldman.org\/wp-content\/uploads\/2025\/08\/SAD-Scheme-RIP-2-300x256.jpg\")
<\/a>The SAD Scheme has entered its death spiral because judges increasingly realize its illegitimacy (and regret their prior acquiescence). Shill efforts won\u2019t reverse this downward spiral. Instead, anyone hitching their reputations to this illegitimate practice, especially at this late date, seems likely to be judged poorly by history.<\/p>\n