The trademark forgery law | Freeman law


In the United States, trademarks, service marks, certification marks, and collective marks are not only protected under civil law under the Lanham Act, but also criminally under the Trademark Counterfeiting Act, 18 USC Section 2320.[1] Section 2320 establishes a criminal law against the trade in counterfeit goods.

Section 2320 encourages companies to control the quality of their goods and services and to invest in their brands.[2] Section 2320 also encourages consumers to rely on the hallmarks of corporate brands by punishing those who attempt to trick consumers into buying counterfeit goods or services, especially those that may pose health or safety risks.[3]

For more information, see our resource titled Fighting Counterfeiters: White-Collar Enforcement of Intellectual Property.

The trademark counterfeiting law

In order to establish a criminal offense under Section 2320, the government must demonstrate several elements:

  1. That the defendant willfully traded, attempted or conspired to trade in goods, services, labels, patches, stickers, wrappings, badges, emblems, medallions, tags, boxes, containers, boxes, cases, tags, documentation or packaging;
  2. That the accused knowingly used or affixed a counterfeit trademark which could cause error, confusion, or deception; and
  3. That the trademark is a counterfeit trademark under Section 2320 (f).[4]

It is a crime to sell even a counterfeit good or service and there are no corresponding offenses regulations.[5] In addition, Section 2320 is a crime of general intent.[6]

In drafting Section 2320, Congress relied heavily on “the concepts and definitions of the Lanham Act”.[7] For this reason, courts often resort to civil reports under the Lanham Act when analyzing criminal cases under Section 2320, even if the latter is often interpreted more narrowly.[8]

Legal remedy in the event of a violation of the Trademark Falsification Act

The maximum penalty for initial violations is up to a $ 2 million fine and ten years’ imprisonment for an individual and a fine of up to $ 5 million for an organization.[9] For follow-up violations, the maximum penalty is almost doubled, if not even tripled.[10]

Increased penalties apply in cases with a known or reckless cause or attempt to cause grievous bodily harm or death, counterfeit military equipment or services, or counterfeit medicines.[11] Refunds may also be available, but trademark owners must use the ® symbol or the words “Registered with the US Patent and Trademark Office” or “Re. US Pat. & Tm. Off. ”To inform the public of their proper registration or risk loss of lost profits and other damage.[12]

Possible defenses against a Violation of the trademark forgery law

Section 2320 has no specific limitation period, i.e. it is subject to the general five-year limitation period for all non-capital federal crimes that are not expressly provided for by law. [13]

The purpose of the law is to give companies “the right to control the quality of the goods manufactured and sold” through the use of a registered trademark.[14] Therefore, the government claims that under Section 2320 it is not an objection that the counterfeit goods are of too low or high quality to cause error, confusion or deception among consumers.[15]

Other common fees

Federal attorneys often combine other charges in pursuing 18 USC Section 2320, such as:

[1] Legal Education Office. Execution off. of US Att’ys., Prosecuting Intellectual Property Crimes 289 (4th ed. 2013).

[2] ID card. at 90.

[3] ID card. at 93.

[4] The Trademark Counterfeiting Act, 18 USC Section 2320.

[5] See United States v Foote, 413 F.3d 1240, 1246 (10th Cir. 2005).

[6] See United States v Baker, 807 F.2d 427, 429 (5th cir. 1986); see also United States versus Gantos, 817 F.2d 41, 42-43 (8th Cir. 1987).

[7] See HR Rep. No. 98-977: 4-5 (1984); see also Joint Declaration on Trademark Law, 130 Kong. Rec. 31, 675 (1984).

[8] See United States v Torkington, 812 F.2d 1347, 1352 (11th Cir. 1987); see also United States v. Giles, 213 F.3d 1247, 1249-50 (10th Cir. 2000).

[9] 18 USC § 2320 (b).

[10] ID card.

[11] The National Defense Authorization Act (NDAA) for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (2011), HR 1540, p. 1867; The Food and Drug Administration (FDASIA) Safety and Innovation Act, Pub. L. No. 112-144, 126 Stat. 993, p. 3197.

[12] 18 USC § 2320 (f).

[13] The Trademark Counterfeiting Act, 18 USC Section 2320; 18 USC § 3282 (a).

[14] ID card.

[15] See United States vs. Farmer, 370 F.3d 435 (4th Cir. 2004); see also United States versus Gonzalez, 630 F. Supp. 894, 896 (SD Fla. 1986).

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