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Trademark Counterfeiting Act of 1984

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Citation Edit

Trademark Counterfeiting Act of 1984, Pub. L. No. 98-473, tit. II, §1502(a), 98 Stat. 2178 (Oct. 12, 1984), codified at 18 U.S.C. 2320 (full-text), and the Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, 110 Stat. 1386 (July 2, 1996).

Overview Edit

These two statutes address the problem of trafficking in counterfeit trademark goods, which primarily involves the clandestine manufacture and distribution of imitations of well-known trademarked merchandise.

The 1984 Act created an offense,[1] which provides that "(w)hoever intentionally traffics or attempts to traffic in goods and services and knowingly uses a counterfeit mark on or in connection with such goods or services" shall be guilty of a felony.[2] Section 2320(b) enables the United States government to obtain an order for the destruction of articles in the possession of a defendant in a prosecution under this section upon a determination by the preponderance of the evidence that such articles bear counterfeit marks.

These Acts also amend the Lanham Act,[3] to create stronger remedies in civil cases involving the intentional use of a counterfeit trademark. They provide mechanisms for obtaining statutory damages, treble damages and attorney's fees.[4] The Lanham Act also provides for ex parte application by a trademark owner for a court order to seize counterfeit materials and instrumentalities where it can be shown that the defendant is likely to conceal or transfer the materials.[5] New amendments permit the seizure order to be served and executed either by federal law enforcement officers or by state or local law enforcement officers.[6] The Lanham Act also requires applicants to file a notice of application for an ex parte seizure order with the U.S. Attorney, who may participate in such proceedings if they appear to affect evidence of a federal crime.

Section 2320(b)(1)(A), provides penalties of up to ten years' imprisonment and a $2 million fine for a defendant who intentionally "traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services," or intentionally "traffics in labels, . . . documentation, or packaging . . . knowing that a counterfeit mark has been applied thereto."

Section 2320(b)(3) provides penalties of up to twenty years' imprisonment and a $5 million fine for a defendant who intentionally traffics in counterfeit drugs or certain counterfeit military goods or services.

References Edit

  1. Codified at 18 U.S.C. §2320.
  2. Id. §2320(a).
  3. 15 U.S.C. §1501 et seq.
  4. Id. §1117.
  5. Id. §1116(d).
  6. Id. §1116(d)(9).

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