Counterfeiting Intellectual Property

By Author: Ned Shaffer
Total Articles: 332
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Counterfeiting has been a developing topic in the last few years for many reasons. While it use to be that finding counterfeit products meant going through black markets and unsavory characters to reach such tainted goods, today, one need only look to the internet. Whether through eBay, Amazon . com, or any other website, counterfeit products are now readily available in otherwise genuine channels of commerce. Typically, the websites themselves are not aware of the nature from the goods being sold via their virtual location. Often, sellers of counterfeited products use these quasi-anonymous channels to sell their products throughout the world.

According to the Worldwide Anti-Counterfeiting Coalition (IACC), the economic impact associated with counterfeiting has skyrocketed in recent years. According to the IACC the International Chamber of Commerce estimates that 7 percent of the world trade is in counterfeit goods and that the counterfeit market is worth $ 350 billion. The actual IACC cites an example from the Business Software Connections, which estimates the cost of software piracy alone at about $12 billion annually. ...
... These statistics and reported sources from the IACC are available at the IACC website.

United states law, such as the Trademark Counterfeiting Act of 1984, the Lanham Act, passed in 1946 and now codified at 15. U.S.C. §§ 1051 - 1141, the actual 2008 Pro-IP Act, as well as other state anti-counterfeiting penal statutes, including California’s Criminal Penal Code § 350, provide civil remedies and criminal fees and penalties to deter and punish counterfeiters.

Under American legislation, a counterfeit brand is defined as a unwarranted mark or designation that is identical with, or substantially indistinguishable through, a trademark that is registered in the Ough.S. Patent as well as Trademark Office, and is used on goods with no consent of the trademark owner. This means that, usually, the criminal provisions and civil treatments are limited to counterfeits associated with registered marks that are actually being used, although unfair competition laws provide some limited relief to owners of unregistered trademarks. A counterfeit certification mark is considered a counterfeit trademark, and thus the same legislation also applies to these. As in willful trademark violation cases, where the statutory damages include highs damages, and possible punitive damages, comparable damages are available for counterfeiting, including criminal liability as well as destruction of the counterfeited items. Criminal liability requires that the seller had real knowledge, or constructive knowledge. Knowledge, consequently, is attributed to the actual defendant that decline had actual knowledge of the counterfeiting, or reasonably should have known, under the circumstances, that the products being sold where counterfeited goods or that the product or its marking or packaging included a counterfeit trademark or certification tag.

Today, counterfeiting is not restricted to Louis Vuitton bags and Rolex watches. More frequently these days, we see everyday items from fabrics in order to electronics, being manufactured in cheap overseas places, and brought into the country either straight via the internet, or to marketers that resell these things in the United States. Similarly, however, we are also realizing a rise in suits for counterfeiting, as owners of trademarks and accreditation marks are beginning to employ updated procedures to recognize and go after counterfeiters.
Saul Acherman
Attorney at
JAFARI LAW GROUP®, INC.

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