Defining counterfeiting downward

Originally posted 2009-11-12 13:32:16. Republished by Blog Post Promoter

Some fakes are worse than others

Some fakes are worse than others

Counterfeit Chic happens upon a new defense to trademark counterfeiting:  “Counterfeiting?  You call this counterfeiting?!”

We’ve all seen imitation goods so poorly rendered that they wouldnt fool a myopic Martian on a dark night.  And there must be a market out there beyond mere video fiction, or LV look-alikes wouldnt keep showing up on shady street corners and in dark corners of the internet, next to the “Prado” and “Channel” bags.  But why would any self-respecting counterfeiter turn out such bad fakes?

It turns out there’s method to the madness.  In theory, these inept imitations could allow a manufacturer/importer/seller to avoid liability under the rationale that there’s no likelihood of consumer confusion.  In practice, however, courts dont like apparent bad actors.

Or have all that much interest in things like likelihood of consumer confusion, actually.  In practice.

On the other hand, as much as I rail against that judicial trend around here, when it comes to trademark counterfeiting I don’t have a big problem with it; it’s nearly a per se, strict liability tort, and that’s what it is.  I certainly wouldn’t want to live in a world where sloppy work is anything other than its own reward, after all.

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Author:Ron Coleman

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5 Responses to “Defining counterfeiting downward”

  1. November 12, 2009 at 2:42 pm #

    At the risk of deja vu all over again, what’s wrong with post-sale confusion?

    As the Second Circuit put the point in Hermes v. Lederer de Paris:

    “[P]ost sale confusion can occur when a manufacturer of knockoff goods offers consumers a cheap knockoff copy of the original manufacturer’s more expensive product, thus allowing a buyer to acquire the prestige of owning what appears to be the more expensive product.”

    • November 12, 2009 at 2:45 pm #

      Oh, I believe in post-sale confusion, though it is rife with at least theoretical problems. But conceptually I like it; I even argued for its extension here. Why do you think otherwise?

  2. November 14, 2009 at 7:18 am #

    Defining counterfeiting downward http://bit.ly/wfEQg #postrank #law

  3. July 27, 2010 at 2:05 pm #

    The popular history Money of Their Own tells the story of some post-World War I Austro-Hungarian diplomats who decide to take revenge on the victors by counterfeiting their money. But when they tried to pass it, it was so badly done that it wasn’t recognized as counterfeit. They were told, “We don’t accept play money.”

Trackbacks/Pingbacks

  1. Jimmie - November 12, 2009

    RT: @RonColeman You call _this_ a counterfeit?! http://bit.ly/3NXqHc | LIKELIHOOD OF CONFUSION®

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