Attorney Steve® Counterfeit Defense Law Firm - Federal Law 18 U.S.C. 2320. [Trafficking in counterfeit goods or services]. Call us at (877) 276-5084 if you are facing a legal issue dealing with trademarks or counterfeits.
Introduction
The Rising Tide of Counterfeit Products: Implications for Major Brands in the United States
Counterfeit and knockoff products have become a pervasive issue that not only affects consumers but also poses a significant threat to major brands worldwide. The United States, as a hub for global commerce and innovation, bears the brunt of these losses, with counterfeit sales amounting to billions of dollars annually. This article delves into the detrimental effects of counterfeit products on major brands, highlighting some of the most affected names in the industry.
The Magnitude of Counterfeit Losses in America:
Counterfeit products encompass a wide range of industries, including fashion, beauty, electronics, automotive, and pharmaceuticals. In the United States alone, the American Apparel and Footwear Association estimates that counterfeiting costs the economy around $225 billion each year. This staggering figure not only harms the profitability of major brands but also discourages innovation, employment opportunities, and overall economic growth.
ATTORNEY STEVE® TIP: NOT ALL INFRINGEMENTS OF TRADEMARKS RISE TO THE LEVEL OF COUNTERFEITING, A MUCH MORE SERIOUS OFFENSE.
Top Major Brands Victimized by Counterfeiters:
Here are some of the major companies that deal with losses due to counterfeiting in the United States and abroad.
1. Nike:
As one of the world's leading sportswear brands, Nike faces substantial losses due to counterfeits. Fake Nike products, from shoes to clothing, flood the market, costing the brand millions annually. Counterfeit Nike goods not only tarnish the brand's reputation but also pose risks to consumers who unknowingly purchase low-quality, potentially harmful products.
2. Apple:
The iconic technology giant Apple and its innovative range of products are not immune to counterfeiting. Counterfeit Apple devices, such as smartphones, tablets, and headphones, often lure unsuspecting customers with cheaper prices. Apple's reputation for quality and reliability is threatened when customers unknowingly purchase counterfeit products, resulting in a loss of revenue and potential damage to the genuine brand's image.
3. Louis Vuitton:
Counterfeit luxury fashion brands remain a rampant problem worldwide, and Louis Vuitton, renowned for its exclusive handbags and accessories, is a prime target. The brand's unmistakable LV logo is extensively replicated, tricking consumers into purchasing subpar imitations. These counterfeit sales not only erode Louis Vuitton's brand integrity but also undermine its profitability and exclusivity.
4. Gucci:
Another prominent luxury fashion brand that consistently faces counterfeit challenges is Gucci. The brand's distinctive designs and iconic GG logo make it an enticing target for counterfeiters. The availability of fake Gucci products dilutes the brand's value, misleads customers, and significantly affects the company's revenue. The fashion house continues to engage in legal battles to combat counterfeiting globally.
5. Rolex:
Counterfeit watches, particularly Rolex replicas, have long plagued the luxury timepiece market. Rolex's reputation for precision and craftsmanship attracts countless imitators, and counterfeit Rolex watches are increasingly difficult to distinguish from genuine ones. These replicas contribute to significant financial losses for the brand, negatively impacting their market position and brand value.
The proliferation of counterfeit and knockoff products presents a multifaceted challenge for major brands in the United States. The losses incurred due to counterfeiting extend beyond monetary value, adversely affecting brand reputation, consumer trust, and even consumer safety. As counterfeiters grow increasingly sophisticated, it becomes imperative for major brands to employ comprehensive strategies to combat this global threat. Partnerships between industry leaders, law enforcement agencies, and the implementation of advanced authentication technologies can help mitigate losses and safeguard both brands and consumers from the detrimental effects of counterfeit products.
The Law of Counterfeiting
As you can see, Counterfeiting is a more narrow form of trademark infringement, and the penalties are much more severe, and so it is important to know what a Plaintiff has to prove (many times an agressive IP legal counsel will try to treat any trademark infringement that involves goods as a counterfeiting violation. But, you need experienced IP legal counsel to make this call.
Here are some of the definitions and items of proof.
(a) Offenses.—Whoever intentionally—
(1) traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,
(2) traffics in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive,
(3) traffics in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security, or
(4) traffics in a drug and knowingly uses a counterfeit mark on or in connection with such drug, or attempts or conspires to violate any of paragraphs (1) through (4) shall be punished as provided in subsection (b).
(b) Penalties.—
(1) In general.—Whoever commits an offense under subsection (a)—
(A) if an individual, shall be fined not more than $2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, shall be fined not more than $5,000,000;
and
(B) for a second or subsequent offense under subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
(2) Serious bodily injury or death.—
(A) Serious bodily injury.— Whoever knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
(B) Death.— Whoever knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for any term of years or for life, or both, and if other than an individual, shall be fined not more than $15,000,000.
(3) Counterfeit military goods or services and counterfeit drugs.—Whoever commits an offense under subsection (a) involving a counterfeit military good or service or drug that uses a counterfeit mark on or in connection with the drug—
(A) if an individual, shall be fined not more than $5,000,000, imprisoned not more than 20 years, or both, and if other than an individual, be fined not more than $15,000,000;
and
(B) for a second or subsequent offense, if an individual, shall be fined not more than $15,000,000, imprisoned not more than 30 years, or both, and if other than an individual, shall be fined not more than $30,000,000.
(c) Forfeiture and Destruction of Property; Restitution.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.
(d) Defenses.— All defenses, affirmative defenses, and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.
ATTORNEY STEVE NOTE: Some of these defenses might include:
- Fair use
- Parody
- No likelihood of consumer confusion
- No intent
- Laches
- Estoppel
- Unclean hands
- Contesting their registration
Other Definitions
(1) the term “counterfeit mark” means—
(A) a spurious mark—
(i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
(ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
(iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office;
and
(iv) the use of which is likely to cause confusion, to cause mistake, or to deceive;
or
(B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36; but such term does not include any mark or designation used in connection with goods or services, or a mark or designation applied to labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature used in connection with such goods or services, of which the manufacturer or producer was, at the time of the manufacture or production in question, authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation;
(2)t he term “financial gain” includes the receipt, or expected receipt, of anything of value;
(3) the term “Lanham Act” means the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes”, approved July 5, 1946 (15 U.S.C. 1051 et seq.);
(4) the term “counterfeit military good or service” means a good or service that uses a counterfeit mark on or in connection with such good or service and that—
(A) is falsely identified or labeled as meeting military specifications,
or
(B) is intended for use in a military or national security application;
(5) the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; and (6)the term “drug” means a drug, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321).
Contact a Counterfeit IP Law Firm
Since 2004, our firm has handled more than a 1,000 intellectual property disputes with companies small (mom and pop) on up to large corporations. If you are involved in a legal dispute over selling allegedly counterfeit goods (ex. Dyson, Louis Vitoun, Rolex, Polo, Nike, Adidas and others) call us for a courtesy consultation.
We are able to structure a LOW FIXED FLAT RATE FEE THAT WILL NOT BREAK YOUR POCKETBOOK. This means a NON-BILLABLE HOUR arrangement unless you are in federal court litigation. Call us at (877) 276-5084 or email us through our contact form.
(a) Offenses.—Whoever intentionally—
(1) traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,
(2) traffics in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive,
(3) traffics in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security, or
(4) traffics in a drug and knowingly uses a counterfeit mark on or in connection with such drug, or attempts or conspires to violate any of paragraphs (1) through (4) shall be punished as provided in subsection (b).
(b) Penalties.—
(1) In general.—Whoever commits an offense under subsection (a)—
(A) if an individual, shall be fined not more than $2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, shall be fined not more than $5,000,000;
and
(B) for a second or subsequent offense under subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
(2) Serious bodily injury or death.—
(A) Serious bodily injury.— Whoever knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
(B) Death.— Whoever knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for any term of years or for life, or both, and if other than an individual, shall be fined not more than $15,000,000.
(3) Counterfeit military goods or services and counterfeit drugs.—Whoever commits an offense under subsection (a) involving a counterfeit military good or service or drug that uses a counterfeit mark on or in connection with the drug—
(A) if an individual, shall be fined not more than $5,000,000, imprisoned not more than 20 years, or both, and if other than an individual, be fined not more than $15,000,000;
and
(B) for a second or subsequent offense, if an individual, shall be fined not more than $15,000,000, imprisoned not more than 30 years, or both, and if other than an individual, shall be fined not more than $30,000,000.
(c) Forfeiture and Destruction of Property; Restitution.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.
(d) Defenses.— All defenses, affirmative defenses, and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.
ATTORNEY STEVE NOTE: Some of these defenses might include:
- Fair use
- Parody
- No likelihood of consumer confusion
- No intent
- Laches
- Estoppel
- Unclean hands
- Contesting their registration
Definitions
(1) the term “counterfeit mark” means—
(A) a spurious mark—
(i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
(ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
(iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office;
and
(iv) the use of which is likely to cause confusion, to cause mistake, or to deceive;
or
(B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36; but such term does not include any mark or designation used in connection with goods or services, or a mark or designation applied to labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature used in connection with such goods or services, of which the manufacturer or producer was, at the time of the manufacture or production in question, authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation;
(2)t he term “financial gain” includes the receipt, or expected receipt, of anything of value;
(3) the term “Lanham Act” means the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes”, approved July 5, 1946 (15 U.S.C. 1051 et seq.);
(4) the term “counterfeit military good or service” means a good or service that uses a counterfeit mark on or in connection with such good or service and that—
(A) is falsely identified or labeled as meeting military specifications,
or
(B) is intended for use in a military or national security application;
(5)the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; and (6)the term “drug” means a drug, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321).
Contact a Counterfeit IP Law Firm
Since 2004, our firm has handled more than a 1,000 intellectual property disputes with companies small (mom and pop) on up to large corporations. If you are involved in a legal dispute over selling allegedly counterfeit goods (ex. Dyson, Apple, Rolex, Polo, Nike, Adidas and others) call us for a courtesy consultation.
We are able to structure a LOW FIXED FLAT RATE FEE THAT WILL NOT BREAK YOUR POCKETBOOK. This means a NON-BILLABLE HOUR arrangement unless you are in federal court litigation. Call us at (877) 276-5084 or email us through our contact form.
(a) Offenses.—Whoever intentionally—
(1) traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,
(2) traffics in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive,
(3) traffics in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security, or
(4) traffics in a drug and knowingly uses a counterfeit mark on or in connection with such drug, or attempts or conspires to violate any of paragraphs (1) through (4) shall be punished as provided in subsection (b).
(b) Penalties.—
(1) In general.—Whoever commits an offense under subsection (a)—
(A) if an individual, shall be fined not more than $2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, shall be fined not more than $5,000,000;
and
(B) for a second or subsequent offense under subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
(2) Serious bodily injury or death.—
(A) Serious bodily injury.— Whoever knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.
(B) Death.— Whoever knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a), if an individual, shall be fined not more than $5,000,000 or imprisoned for any term of years or for life, or both, and if other than an individual, shall be fined not more than $15,000,000.
(3) Counterfeit military goods or services and counterfeit drugs.—Whoever commits an offense under subsection (a) involving a counterfeit military good or service or drug that uses a counterfeit mark on or in connection with the drug—
(A) if an individual, shall be fined not more than $5,000,000, imprisoned not more than 20 years, or both, and if other than an individual, be fined not more than $15,000,000;
and
(B) for a second or subsequent offense, if an individual, shall be fined not more than $15,000,000, imprisoned not more than 30 years, or both, and if other than an individual, shall be fined not more than $30,000,000.
(c) Forfeiture and Destruction of Property; Restitution.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.
(d) Defenses.— All defenses, affirmative defenses, and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.
ATTORNEY STEVE NOTE: Some of these defenses might include:
- Fair use
- Parody
- No likelihood of consumer confusion
- No intent
- Laches
- Estoppel
- Unclean hands
- Contesting their registration
Definitions
(1) the term “counterfeit mark” means—
(A) a spurious mark—
(i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
(ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
(iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office;
and
(iv) the use of which is likely to cause confusion, to cause mistake, or to deceive;
or
(B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36; but such term does not include any mark or designation used in connection with goods or services, or a mark or designation applied to labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature used in connection with such goods or services, of which the manufacturer or producer was, at the time of the manufacture or production in question, authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation;
(2)t he term “financial gain” includes the receipt, or expected receipt, of anything of value;
(3) the term “Lanham Act” means the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes”, approved July 5, 1946 (15 U.S.C. 1051 et seq.);
(4) the term “counterfeit military good or service” means a good or service that uses a counterfeit mark on or in connection with such good or service and that—
(A) is falsely identified or labeled as meeting military specifications,
or
(B) is intended for use in a military or national security application;
(5)the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; and (6)the term “drug” means a drug, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321).
Contact a Counterfeit IP Law Firm
Since 2004, our firm has handled more than a 1,000 intellectual property disputes with companies small (mom and pop) on up to large corporations. If you are involved in a legal dispute over selling allegedly counterfeit goods (ex. Dyson, Apple, Rolex, Polo, Nike, Adidas and others) call us for a courtesy consultation.
We are able to structure a LOW FIXED FLAT RATE FEE THAT WILL NOT BREAK YOUR POCKETBOOK. This means a NON-BILLABLE HOUR arrangement unless you are in federal court litigation. Call us at (877) 276-5084 or email us through our contact form.
