Citation[]
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[]
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.