Academic journal article Journal of Criminal Law and Criminology

Product Counterfeiting Legislation in the United States: A Review and Assessment of Characteristics, Remedies, and Penalties

Academic journal article Journal of Criminal Law and Criminology

Product Counterfeiting Legislation in the United States: A Review and Assessment of Characteristics, Remedies, and Penalties

Article excerpt

TABLE OF CONTENTS  INTRODUCTION       A. Forms of Intellectual Property       B. An Overview of Federal Anti-Counterfeiting Laws         1. Lanham Act         2. The Trademark Counterfeiting Act         3. Federal Trademark Dilution Act         4. The Anticounterfeiting Consumer Protection Act         5. Anticybersquatting Consumer Protection Act         6. Stop Counterfeiting in Manufactured Goods Act         7. PRO-IP Act  I. ANALYSIS OF CURRENT STATE ANTI-COUNTERFEITING LAWS       A. Civil Remedies         1. Policy Characteristics         2. Damages       B. Criminal Sanctions         1. Policy Characteristics         2. Punishment II. COMPARING CIVIL AND CRIMINAL STATE STATUTES       A. Civil Remedies Index       B. Criminal Sanctions Index       C. Civil Remedies Versus Criminal Sanctions Indices DISCUSSION AND CONCLUSION 


Product counterfeiting presents an enormous threat to brand owners, manufacturers, governments, and consumers around the world. (1) While luxury brand items are commonly associated with counterfeits, any manufactured good can be counterfeited, including aircraft and automobile parts, artwork, batteries, agricultural products, chemicals and pesticides, clothing, collectables, electronics, food and drinks, healthcare products, household products, jewelry, tobacco, and toys. (2) Hundreds of millions of dollars in sales revenue are diverted annually through the manufacturing and trafficking of counterfeit goods. (3) The Organization for Economic Cooperation and Development estimated that international trade in counterfeit goods was as much as $461 billion in United States Dollars (USD) in 2013, up from an earlier estimate of $200 billion USD in 2005, (4) while Business Action to Stop Counterfeiting and Piracy, an initiative of the International Chamber of Commerce, estimated the total annual cost of counterfeiting to be over $650 billion USD as of 2008. (5) However, because of the illicit nature of counterfeiting, it is extremely difficult to obtain an accurate estimate of its economic impact on society. A 2010 report issued by the U.S. Government Accountability Office contended that estimates circulated and recycled by the media, government, and non-government agencies cannot be substantiated due to limitations in their underlying research methodologies. (6) Nevertheless, these estimates consistently point to product counterfeiting as a growing global problem.

In addition to the direct and immediate loss of sales revenue by manufacturers whose goods are counterfeited, businesses also face the potential loss of goodwill due to consumer dissatisfaction from experiences with the inferior quality of some counterfeited goods. (7) Moreover, if the product being counterfeited poses a serious threat to public health and safety, such as with pharmaceuticals, consequences extend beyond economic loss. For instance, in 2008, the blood thinner Heparin was found to have counterfeit active ingredients, and it was eventually linked to eighty-one deaths in the United States. (8) More recently in early 2016, at least six deaths in California were linked to counterfeit fentanyl, (9) as well as numerous additional overdoses across the U.S. since 2015. (10)

Despite federal and state legislation in the U.S. combating product counterfeiting, it remains an understudied area, but research and policy interests in it are increasing. Therefore, as a necessary foundation, it is important for scholars, practitioners, and policymakers to better understand the legal development surrounding this crime problem, particularly as it relates to providing protection against trademark infringement.

To help provide a foundation for this area of growing scholarship, the purpose of this Article is threefold. First in Introduction Subpart A, we review the various forms of intellectual property to illustrate the 'family' of violations in which product counterfeits are considered and highlight the key characteristics that distinguish it from the others. …

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