Fitzgerald: The Fashion Police

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The Fashion Police: Criminalizing the Knowing Purchase of Trademark

Counterfeit Fashion Items

ERIN FITZGERALD*

ABSTRACT

Sex and the City, Gossip Girl, and Keeping Up with the Kardashians bring high fashion luxury brands into homes on a nightly basis. The desire to obtain these celebrity styles is a driving force behind the success of trademark counterfeit fashion sellers. A consumer can buy a counterfeit of a handbag she recently saw on a red carpet for $30 on a street corner, while the genuine product costs $1,200. But at what cost to society are consumers willing to make these purchases?

It is a common misconception that the purchase of counterfeit fashion items is a harmless act of bargain shopping. In actuality, counterfeit purchases cost U.S. companies $250 billion annually, $12 billion of which is specifically lost in the fashion industry. It is also estimated that 750,000 U.S. jobs have been lost to counterfeiters. Even more threatening, these purchases fund organized crime operations such as prostitution, drug trafficking, and terrorism. For instance, the FBI has confirmed that the 1993 bombing of the World Trade Center was funded by counterfeit purchases made on Broadway Avenue in New York City. Finally, buying counterfeit items supports child labor and ignores the health risks the goods pose to consumers. For example, in order to cut costs, counterfeiters often use ingredients such as antifreeze, bacteria, and even urine to produce counterfeit luxury perfumes.

While it is illegal in the United States to manufacture and sell trademark counterfeit items, it is not illegal to purchase them. Under the Trademark Counterfeiting Act, a counterfeiter can receive a fine of up to $2

* Candidate for Juris Doctor, New England Law | Boston (2013). B.A., Psychology and

Criminal Justice, Stonehill College (2003). I would like to thank my colleagues on the New

England Law Review for their suggestions, editing, and support throughout the publication

process.


128 New England Law Review v. 47 | 127

million or imprisonment of up to ten years, or both if found guilty of intentionally dealing in goods bearing counterfeit trademarks. However, despite these tough criminal penalties, the counterfeiting industry continues to grow. It is time to hold purchasers of counterfeit fashion items accountable for their role in this crime.

Based on the existing crime of receiving stolen property, this Note proposes a uniform law stating: No person shall purchase a fashion item bearing a counterfeit trademark when such person knows or reasonably should have known such trademark is counterfeit. The Note also explores criminal penalties for the new crime and law enforcement strategies. Finally, the Note considers possible criticisms of the proposed law and why the need for the law outweighs these criticisms.

INTRODUCTION

ex and the City, Gossip Girl, and Keeping Up with the Kardashians bring high fashion luxury brands into homes on a nightly basis.1 The desire to obtain these celebrity styles is a driving force behind the

success of trademark counterfeit fashion sellers.2 A consumer can buy a counterfeit of a handbag she recently saw on a red carpet for $30 on a street corner, while the genuine product costs $1,200.3 But at what cost to society are consumers willing to make these purchases?

It is a common misconception that the purchase of counterfeit fashion items is a harmless act of bargain shopping.4 In actuality, counterfeit purchases cost U.S. companies $250 billion annually, $12 billion of which is specifically lost in the fashion industry.5 It is also estimated that 750,000 U.S. jobs have been lost to counterfeiters.6 Even more threatening, these purchases fund organized crime operations such as prostitution, drug

1 See, e.g., The Best of “Sex and the City” Fashion, NBC S. CAL.,

http://www.nbclosangeles.com/the‐scene/fashion/THREAD‐Sex‐and‐the‐City‐Fashion‐

94829819.html (last visited May 29, 2012). 2 See Keith Wilcox et al., Why Do Consumers Buy Counterfeit Luxury Brands?, 66 J. OF

MARKETING RES. 247, 249 (2009). (noting that people may buy high fashion items because they

are status symbols). 3 Guillermo Contreras, Bogus Goods to Cost Flea Market $3.6 Million: Jury Decides Against

Eisenhauer Emporium, MY SAN ANTONIO (Jan. 12, 2012, 11:49 PM), http://www.mysanantonio

.com/news/local_news/article/Bogus‐goods‐to‐cost‐flea‐market‐3‐6‐million‐2492681.php. 4 Aubrey Fox, The High Price of Counterfeit Goods, GOTHAM GAZETTE (Mar. 2008),

http://www.gothamgazette.com/article/crime/20080331/4/2476. 5 Wilcox, supra note 2, at 247. 6 About Counterfeiting, INT’L ANTICOUNTERFEITING COALITION, http://www.iacc.org/about‐

counterfeiting/ (last visited Nov. 28, 2012).

S


2012 The Fash ion Pol i c e 129

trafficking, and terrorism.7 For instance, the FBI has confirmed that the 1993 bombing of the World Trade Center was funded by counterfeit purchases made on Broadway Avenue in New York City.8 Finally, buying counterfeit fashion items supports child labor and ignores the health risks the goods pose to consumers.9 For example, in order to cut costs, counterfeiters often use ingredients such as antifreeze, bacteria, and even urine to produce counterfeit luxury perfumes.10

While it is illegal in the United States to manufacture and sell trademark counterfeit items, it is not illegal to purchase them.11 Under the Trademark Counterfeiting Act, a counterfeiter who intentionally traffics or attempts to traffic in goods with a counterfeit mark or knowingly uses a counterfeit mark on goods is subject to a criminal penalty.12 Counterfeiters can be fined up to $2 million or imprisoned up to ten years, or both.13 Despite these tough criminal penalties, the counterfeiting industry continues to grow.14 It is time to hold purchasers of counterfeit fashion items accountable for their role in this crime.15

This Note proposes a uniform law16 for the criminalization of the knowing purchase of trademark counterfeit fashion items.17 The paper

7 Fox, supra note 4. 8 Facts on Fakes, THE INT’L ANTICOUNTERFEITING COALITION 6, http://www.fnal.gov/direct

orate/OQBP/sci/sci_reference_docs/SCI%20Facts_on_fakes.pdf (last visited Nov. 28, 2012). 9 Fox, supra note 4. 10 Elisabeth Leamy & Vanessa Weber, Fake Fragrances: What Is Really in Them?, ABC GOOD

MORNING AM. (Jan. 27, 2010), http://abcnews.go.com/GMA/ConsumerNews/ counterfeit‐

perfumes/story?id=9670448. 11 ANNE GILSON LALONDE, ANTI‐COUNTERFEITING IN THE TWENTY‐FIRST CENTURY 32‐33

(2006). 12 18 U.S.C. § 2320(a)(1) (2008). 13 Id. 14 Facts on Fakes, supra note 8, at 3 (noting that in 1982 counterfeiting cost the global

economy $5.5 billion and by 1996 the number increased to $200 billion); Miriam Bitton,

Rethinking the Anti‐counterfeiting Trade Agreement’s Criminal Copyright Enforcement Measures,

102 J. CRIM. L & CRIMINOLOGY 67, 68 (2010), available at http://www.law.northwestern.edu/

jclc/backissues/v102/n1/1021_67.Bitton.pdf (showing that today counterfeiting costs the global

economy $600 billion annually). 15 Phillip A. Rosenberg, A Legislative Response to Tiffany v. eBay: In Search of an Online

Commerce Certification Act (OCCA), 36 RUTGERS COMPUTER & TECH. L.J. 99, 116 (2009)

(concluding that government would be well advised to consider criminal penalties for

consumers who knowingly buy counterfeit products). 16 Uniform laws provide “states with non‐partisan, well‐conceived, and well‐drafted

legislation that brings clarity and stability to critical areas of state statutory law.” About the

ULC, UNIFORM LAW COMMISSION, http://uniformlaws.org/Narrative.aspx?title=About the ULC

(last visited Nov. 28, 2012). 17 See infra Part V.



focuses on counterfeit fashion items because unlike other counterfeited goods such as food and pharmaceuticals, which are given more statutory protection, fashion trademark owners have no additional special protection.18 Part I of this Note provides an overview of trademark law. Part II discusses the rise of trademark counterfeiting in the fashion industry. Part III explores current anti‐counterfeiting enforcement, including border patrol, trade organizations, and local law enforcement. Part IV highlights the harms that the purchase and sale of counterfeit goods has on society. Part V of this Note proposes a uniform law for the criminalization of the knowing purchase of trademark counterfeit fashion items. Finally, Part VI of this Note discusses possible criticisms of the proposed law.

I. Overview of Trademark Law

The practice of branding products with a distinctive mark traces back over 4,000 years.19 During the Middle Ages, European blacksmiths were required to imprint unique symbols on their metal work to identify themself as the maker.20 While trademarks can be traced back to antiquity, the road to their governing laws has been long and windy.21

Congress enacted the first federal trademark statute in 1870 in response to industrial growth after the Civil War.22 The statute provided for the registration of trademarks and civil remedies against those who infringed them.23 This allowed manufacturers to establish individual identity within their trade markets.24 The statute was amended in 1876 to add criminal penalties to the already existing civil remedies for trademark infringement.25 However, only a few years later, the U.S. Supreme Court ruled that the statute was unconstitutional because the Commerce Clause

18 Lisa Lyne Cunningham, Trademark Counterfeiting and Individual Purchaser Liability, THE

NATIONAL LAW REVIEW 1 (Nov. 11, 2011), http://www.natlawreview.com/article/trade mark‐

counterfeiting‐and‐individual‐purchaser‐liability (follow “Download PDF” hyperlink). 19 David D. Mouery, Trademark Law and the Bottom Line – Coke is it!, 2 BARRY L. REV. 107,

111 (2001). 20 PAUL R. PARADISE, TRADEMARK COUNTERFEITING, PRODUCT PIRACY, AND THE BILLION

DOLLAR THREAT TO THE U.S. ECONOMY 14 (1999). 21 See CRAIG JOYCE ET AL., COPYRIGHT LAW 9 (8th ed. 2010) (explaining that “trademark law

has come a long way from its beginnings”). 22 A Brief History of Trademark Law in the USA, AMERILAWYER.COM, http://www.

amerilawyer.com/pdf/404.pdf (last visited Nov. 28, 2012) [hereinafter AMERILAWYER]. 23 In re Trade‐Mark Cases, 100 U.S. 82, 85 (1879). 24 See AMERILAWYER, supra note 22. 25 Zvi S. Rosen, In Search of the Trade‐Mark Cases: The Nascent Treaty Power and the Turbulent

Origins of Federal Trademark Law, 83 ST. JOHNʹS L. REV. 827, 842‐43 (2009).



did not grant Congress the power to regulate trademarks.26

A. The Trademark Act of 1946

It was not until 1946 that Congress reasserted its authority to govern trademarks.27 The Trademark Act of 1946, known as the Lanham Act, formed the foundation of current federal trademark protection.28 Under the Lanham Act a trademark is defined as “any word, name, symbol, or device . . . used by a person . . . to identify and distinguish [their] goods . . . from those manufactured or sold by others and to indicate the source of the goods . . . .”29 Some of the most recognizable trademarks today are the Nike “swoosh” design, the Coca‐Cola bottle shape, and the NBC chimes that identify the network.30

While trademarks are used in every industry, they are considered a fashion company’s most valuable asset.31 Since fashion purchases are often motivated by an item’s label and reputation, fashion companies rely heavily on their trademarks to help consumers identify and distinguish one brand from another.32 Trademarks in the fashion industry are found on shoes, dresses, shirts, jeans, hats, and eyewear.33 They are so prevalent that consumers often do not realize they are looking at a legal entity—they

26 See In re Trade‐Mark Cases, 100 U.S. at 97‐98 (striking down Congressʹs amended 1876

trademark statute as outside of the authority given to Congress in the Commerce Clause);

Edward Grosek, The Multilateral Agreements that Protect Trademarks and Marks that Indicate

Origins of Source, 82 J. PAT. & TRADEMARK OFF. SOCʹY 471, 473 (2000) (noting that the Supreme

Court invalidated the statute in 1879). 27 See Elizabeth L. Warren‐Mikes, December Madness: The Seventh Circuit’s Creation of Dual

Use in Illinois High School Association v. GTE Vantage, 93 NW. U. L. REV. 1009, 1012 (1999)

(noting Congress passed the Lanham Act in 1946 which governs trademark law). 28 David S. Welkowitz, The Supreme Court and Trademark Law in the New Millennium, 30 WM.

MITCHELL L. REV. 1659, 1669 (2004) (explaining the that Trademark Act of 1946 was the first

federalized trademark law). 29 15 U.S.C. § 1127 (2006). 30 SIEGRUN D. KANE, TRADEMARK LAW: A PRACTITIONER’S GUIDE § 1:1:1, at 1‐2 (4th ed.

2006). 31 Radiance Walters, INTA Round‐Table: Trademark Law in the Fashion and Apparel Industries,

DLA PIPER (Feb. 8, 2011), http://www.remarksblog.com/copyright/inta‐round‐table‐

trademark‐law‐in‐the‐fashion‐and‐apparel‐industries/. 32 See Barbara Kolsun & Heather J. McDonald, Counterfeiting, in FASHION LAW: A GUIDE

FOR DESIGNERS, FASHION EXECUTIVES, AND ATTORNEYS 105, 105 (Guillermo C. Jimenez &

Barbara Kolsun eds., 2010). 33 See Sara R. Ellis, Copyrighting Couture: An Examination of Fashion Design Protection and

Why the DPPA and IDPPPA are a Step Towards the Solution to Counterfeit Chic, 78 TENN. L. REV.

163, 175 (2010) (providing that Chanel’s interlocking back‐to‐back C’s and Louis Vuitton’s

entwined “LV” Toile Monogram are well‐known fashion trademarks).



merely consider trademarks part of a fashion item.34

B. Purposes of Trademark Law

Scholars in the area of trademark law have traditionally viewed marks as a source of identification and information for the protection of consumers.35 It is widely accepted that the primary purpose of a trademark is to provide consumers with the origin of the good—the company—based on the mark used on the product.36 Associating an origin with a trademark enables consumers to distinguish between goods of different companies in the marketplace.37 Additionally, trademarks symbolize the quality of a product.38 When a consumer sees a familiar mark, he or she is able to attach a degree of nature and quality to the product that has been established in the marketplace.39

While the traditional focus of trademark law is centered on protecting consumers from confusion and unfamiliar goods, there is a current “trend towards the propertization of trademarks.”40 This trend is supported by recent court decisions that focus on a trademark’s proprietary value, rather than on its ability to convey product information to consumers.41 In Qualitex Co. v. Jacobson Prods. Co., the Supreme Court—understanding the value companies place upon their trademarks—held that a color is an acceptable trademark as long as it acts as a source identifier.42 Courts have also allowed the enforcement of trademark protection outside of a manufacturer’s primary market.43 Courtsrecognized the possibility of

34 George Gottlieb et al., An Introduction to Intellectual Property Protection in Fashion, in

FASHION LAW: A GUIDE FOR DESIGNERS, FASHION EXECUTIVES, AND ATTORNEYS 35, 39

(Guillermo C. Jimenez & Barbara Kolsun eds., 2010). 35 Rudolf Rayle, The Trend Towards Enhancing Trademark Owners’ Rights—A Comparative

Study of U.S. and German Trademark Law, 7 J. INTELL. PROP. L. 227, 227 (2000). 36 Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412 (1916) (holding that the primary

purpose of a trademark is “to identify the origin or ownership of the [good] to which it is

affixed”); ROBERT C. LIND, TRADEMARK LAW: STUDENT STUDY GUIDE 1 (2002). 37 Gottlieb et al., supra note 34, at 39. 38 ABA SECTION OF INTELL. PROP. LAW, WHAT IS A TRADEMARK? 6 (3d ed. 2009) [hereinafter

ABA]; KANE, supra note 30, at § 1:2:1[B], at 1‐10. 39 ABA, supra note 38. 40 Amanda Silverman, Draconian or Just? Adopting the Italian Model of Imposing

Administrative Fines on the Purchasers of Counterfeit Goods, 17 CARDOZO J. INT’L & COMP. L. 175,

209 (2009). 41 See Robert G. Bone, Enforcement Costs and Trademark Puzzles, 90 VA. L. REV. 2099, 2121

(2004). 42 See 514 U.S. at 163. 43 Bone, supra note 41, at 2119 (noting that courts have expanded trademark protection

outside of a trademark owner’s primary market).



trademark confusion—an element in proving trademark infringement—at points outside of the time of purchase.44 Thus, under the modern view, trademarks are considered valuable property belonging to the trademark holder.45

C. Trademark Counterfeiting Act

While the Lanham Act provides adequate recourse for trademark infringement,46 it was not created with trademark counterfeiting in mind.47 The civil remedies imposed were not harsh enough to deter counterfeiting.48 They were simply considered a cost of doing business in the highly lucrative counterfeiting world.49 It was not until Congress enacted the Trademark Counterfeiting Act of 1984 that criminal penalties and tougher civil remedies were available against trademark counterfeiters.50 Yet despite tougher penalties, the counterfeit business continued to flourish.51 In response, Congress amended the Trademark Counterfeiting Act in both 1994 and 1996 to increase penalties.52

The most recent amendment to the Trademark Counterfeiting Act occurred in 2006.53 The current statute provides that anyone who intentionally traffics or attempts to traffic in goods with a counterfeit mark

44 Keds Corp. v. Renee Int’l Trading Corp., 888 F.2d 215, 222 (1st Cir. 1989) (noting that

trademark confusion should be analyzed, not only at the point of sale, but also through the

eyes of prospective consumers); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d

867, 871 (2d Cir. 1986) (allowing Levi‐Strauss to stop a company from using their unique

stitching pattern because a person who sees it may be confused into thinking the jeans are

Leviʹs jeans). 45 See Silverman, supra note 40, at 210. 46 Trademark infringement is the use of a mark that is similar enough to a registered mark

that it is likely to cause confusion about the source of a good. 15 U.S.C. § 1114(1) (2006). 47 Cunningham, supra note 18, at 2. 48 S. REP. NO. 98‐526, at 5 (1984); Steven N. Baker & Matthew Lee Fesak, Who Cares About

the Counterfeiters? How the Fight Against Counterfeiting Has Become an In Rem Process, 83 ST.

JOHNʹS L. REV. 735, 739 (2009). 49 S. REP. NO. 98‐526, at 5; David J. Goldstone & Peter J. Toren, The Criminalization of

Trademark Counterfeiting, 31 CONN. L. REV. 1, 6 (1998). 50 KANE, supra note 30, at § 8:3:1[A] (explaining that the Trademark Counterfeiting Act of

1984 included “criminal penalties of up to $250,000, up to five years’ imprisonment, or both”). 51 2 ANNE GILSON LALONDE, GILSON ON TRADEMARKS § 5.19[7] (2008). 52 KANE, supra note 30, at § 8:3:1[A] (providing that the 1994 amendment increased

criminal penalties “to $2 million and not more than ten years’ imprisonment for a first

offense;” and the 1996 amendment “strengthened the civil remedies by providing . . .

damages ranging from $500 to $100,000 per counterfeit trademark for each type of offending

merchandise and up to $1 million per mark if the violation is willful”). 53 See Stop Counterfeiting in Manufactured Goods Act, Pub. L. No. 109‐181, § 1, 120 Stat.

285, 289 (codified as amended at 18 U.S.C. § 2320 (2006)).



or knowingly uses a counterfeit mark on goods is subject to a fine up to $2 million or imprisonment of up to ten years, or both.54 It defines a counterfeit mark as “a spurious mark . . . that is identical with, or substantially indistinguishable from . . .” a registered trademark.55 While all counterfeiting is infringement, not all infringement is counterfeiting.56 Unlike infringers, counterfeiters intentionally deal in goods they know bear a counterfeit mark,57 and pass the goods off as authentic items.58

II. Overview of Trademark Counterfeiting in the Fashion Industry

While counterfeiting can be traced back over 4,000 years, it was not until the 1960’s that the United States started to feel its effect.59 The American garment industry was hit particularly hard by counterfeiting during this time.60 The problem only grew worse as “designer” fashion labels entered the marketplace.61 Traditionally, fashion labels were stenciled on the inside of clothing.62 However, by mid‐century designers such as Louis Vuitton, Chanel, Gucci, and Hermes began using their trademarks on the outside of garments so that consumers would recognize their brand.63

The most popular designer fashion labels were found on denim jeans.64 Historically, jeans were considered a “working man’s clothes.”65 However,

54 Id. 55 18 U.S.C. § 2320(e). 56 See Lynda Zadra‐Symes & Nicholas M. Zovko, Anti‐Counterfeiting Strategies: What You

Need to Know, 49 ORANGE COUNTY L. 10, 11 (Aug. 2007) (providing that a defendant is liable

for trademark infringement if trademark counterfeiting is established, but to establish

counterfeiting the plaintiff must show that the defendant intentionally used a counterfeit

mark). 57 See PARADISE, supra note 20, at 8. 58 Nicole Giambarrese, The Look for Less: A Survey of Intellectual Property Protections in the

Fashion Industry, 26 TOURO L. REV. 243, 259 (2010) (explaining that counterfeiters try “to

deceive buyers into thinking they are purchasing genuine merchandise”) (internal quotation

marks omitted). 59 Mouery, supra note 19; PARADISE, supra note 20, at 73. 60 PARADISE, supra note 20, at 73. 61 See Robert J. Abalos, Commercial Trademark Counterfeiting in the United States, the Third

World and Beyond: American and International Attempts to Stem the Tide, 5 B.C. THIRD WORLD L.J.

151, 153 (1985) (noting that an increase in trademark counterfeiting activity was seen after the

use of designer labels began). 62 Bill Cunningham, Fashion that Speaks for Itself, N.Y. TIMES, Jan. 7, 1996, at 32, available at

http://www.nytimes.com/1996/01/07/style/on‐the‐street‐fashion‐that‐speaks‐for‐itself.html. 63 Id. 64 PARADISE, supra note 20, at 75. 65 Id.; accord The History of Blue Jeans: Let’s Go Back in Time, JEANS AND ACCESSORIES,

http://www.jeans‐and‐accessories.com/history‐of‐blue‐jeans.html (last visited Nov. 28, 2012)



in the 1960s, bell‐bottom jeans gained unprecedented popularity as a symbol of antiestablishment.66 Individuals who once worn jeans as children were now wearing them as adults.67 It did not take long for the labels on jeans to become more valuable than the item they were affixed to.68 As the value of designer labels rose, counterfeiters saw the ease with which they could copy the labels to turn an enormous profit.69 By merely sewing a counterfeit label onto a pair of jeans, a tee shirt, or a bag, a counterfeiter could sell a generic item for double or triple the price.70

While fashion “knock‐offs”71 were common during this time, the birth of counterfeiting designer labels caught the fashion industry by surprise.72 The novelty of trademark counterfeiting in the fashion industry left designers with little recourse.73 Spurred by necessity, leaders in the fashion industry became instrumental in developing anti‐counterfeiting legislation and creating organizations dedicated to protecting intellectual property.74

III. Anti‐counterfeiting Enforcement

A. Border Enforcement

Border enforcement is considered one of the “most significant allies in enforcing laws against counterfeiting.”75 Two federal agencies play an intricate role in patrolling the importation of counterfeit goods: Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement

[hearinafter JEANS AND ACCESSORIES]. 66 JEANS AND ACCESSORIES, supra note 65 (stating that jeans were worn during the hippy

movement; and symbolized “western decadence” and individuality). 67 PARADISE, supra note 20, at 75. 68 See Cunningham, supra note 62. 69 PARADISE, supra note 20, at 76. 70 Id. 71 “Knock‐offs” are imitation goods made to be similar to the original article, but are not

represented to consumers as the original. Lauren Michel, On Teaching Fashion: Counterfeits,

Knock‐offs, and Plagiarism, WORN THROUGH (Feb. 27, 2009), http://www.

wornthrough.com/2009/02/27/on‐teaching‐fashion‐counterfeits‐knock‐offs‐and‐plagiarism/. 72 PARADISE, supra note 20, at 77. 73 See KANE, supra note 30, at § 8:3.1[A] (providing that it was not until the Trademark

Counterfeiting Act of 1984 that Congress directly addressed the growing problem of

commercial counterfeiting through tougher penalties). 74 See Rosielyn A. Pulmano, In Search of Compliance With TRIPs Against Counterfeiting in the

Philippines: When is Enough Enough?, 12 TRANSNAT’L LAW. 241, 247 & n.34 (1999) (stating that

many fashion business owners were integral to the creation of the International

AntiCounterfeiting Coalition: an institution responsible for the enactment of the Trademark

Counterfeiting Act of 1984.). 75 Kolsun & McDonald, supra note 32, at 117.



(“ICE”).76 The mission of CBP is to protect the United States from terrorists, terrorist weapons, and to ensure that goods imported into the United States are legitimate.77 Every year CBP oversees the importation of over $2 trillion worth of goods.78 In order to optimize its effectiveness, CBP prioritizes which trade issues to look at most closely during importation.79 Controlling the importation of counterfeit goods is one of CBP’s highest priorities because of the threat the counterfeit goods pose to America’s economy, national security, and the health and safety of its consumers.80

Similarly, ICE’s primary goal “is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration.”81 In 2010, ICE unveiled a five year strategic plan to ensure its mission was effectively accomplished.82 This plan highlighted four key priorities, including the protection of U.S. borders against illegal trade.83 Specifically, the agency intends to combat the war on counterfeit importation by “invigorat[ing] intellectual property investigation[]” by leveraging their “partnerships with private industry to address and prevent the smuggling of falsely labeled commodities . . . .”84

While both CBP and ICE independently work to accomplish their missions, their partnership under the National Intellectual Property Rights Coordination Center (“IPR Center”) also aids their goals.85 “[T]he IPR Center uses the expertise of its member agencies to share information, develop initiatives, coordinate enforcement actions, and conduct

76 Id. 77 Bennie G. Thompson, A Legislative Prescription for Confronting 21st‐Century Risks to the

Homeland, 47 HARV. J. ON LEGIS. 277, 310 (2010); About CBP, U.S. CUSTOMS AND BORDER

PROTECTION, http://www.cbp.gov/xp/cgov/about/ (last visited Nov. 28, 2012). 78 Jarrod M. Goldfeder, 2008 International Trade Decisions of the Federal Circuit, 58 AM. U. L.

REV. 975, 976 (reporting that in 2007 the U.S. imported almost $2 trillion worth of goods). 79 Priority Trade Issues, U.S. CUSTOMS AND BORDER PROTECTION,

http://www.cbp.gov/xp/cgov/trade/priority_trade/ (last visited Nov. 28, 2012). 80 Id. 81 About ICE, U.S. IMMIGR. AND CUSTOMS ENFORCEMENT, http://www.ice.gov/

about/overview/ (follow “Mission” hyperlink) (last visited June. 2 , 2012); accord Thompson,

supra note 77, at 310. 82 ICE Strategic Plan: Fiscal Years 2010‐2014, U.S. IMMIGR. AND CUSTOMS ENFORCEMENT 2,

http://www.ice.gov/doclib/news/library/reports/strategic‐plan/strategic‐plan‐2010.pdf (last

visited Nov. 28, 2012) [hereinafter ICE Strategic Plan]. 83 Id. at 3. 84 Id. at 4‐5. 85 Lauren D. Amendolara, Note, Knocking out Knock‐offs: Effectuating the Criminalization of

Trafficking in Counterfeit Goods, 15 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 789, 814 (2005).



investigations related to IP theft.”86 Its success is shown through the increased number of seizures of counterfeit goods since its formation in 2000.87 In 2010, the combined efforts of CBP and ICE resulted in 19,959 seizures, a thirty‐four percent increase compared to the number of seizures in 2009.88 The seized counterfeit goods valued $188.1 million worth of domestic goods, forty‐two percent of which were fashion items.89

B. Trade Organizations

Intellectual property organizations supplement the efforts of border patrol agencies through the promotion of laws, regulations, and anti‐counterfeiting initiatives.90 Organizations such as the International AntiCounterfeiting Coalition (“IACC”), World Intellectual Property Organization (“WIPO”), and International Trademark Association (“INTA”) are dedicated to protecting intellectual property, establishing international intellectual property treaties, and deterring counterfeiting.91

The INTA has been influential in establishing strong federal trademark legislation including the Lanham Act in 1946, the Trademark Counterfeiting Act of 1984, the 2006 Stop Counterfeiting in Manufactured Goods Act, and the Anticybersquatting Consumer Protection Act of 1999.92 Similarly, the IACC’s tireless lobbying pushed Congress to enact the Anti‐Counterfeiting Consumer Protection Act of 1996—an amendment to the Trademark Counterfeiting Act—which gave the U.S. Customs Service

86 About Us, NAT’L INTELL. PROP. RIGHTS COORDINATION CENTER,

http://www.iprcenter.gov/about‐us (last visited Nov. 28, 2012). 87 See Amanda S. Reid, Comment, Enforcement of Intellectual Property Rights in Developing

Countries: China as a Case Study, 13 DEPAUL‐LCA J. ART & ENT. L. 63, 64 (2003) (noting that U.S.

Customs Service seized more than $45 million in counterfeit goods in 2000, more than $57

million worth of products in 2001, and more than $98 million in counterfeit goods in 2002). 88 Intellectual Property Rights: Fiscal Year 2010 Seizure Statistics, IPRCENTER.GOV 5,

http://www.iprcenter.gov/reports/ipr‐final‐report‐fiscal‐year‐2010‐seizure‐statistics/view (last

visited Nov. 20, 2012). 89 Id. at 13 (detailing that 24% were footwear items, 10% were wearing appeal, and 8%

were handbags, wallets, and backpacks). 90 See About the IACC, INT’L ANTICOUNTERFEITING COALITION, https://iacc.org/about‐the‐

iacc/ (last visited Nov. 28 , 2012). 91 See About IACC, INT’L ANTICOUNTERFEITING COALITION, https://iacc.org/ (last visited

Nov. 20, 2012); About INTA, INT’L TRADEMARK ASS’N, http://www.inta.org/About

/Pages/Overview.aspx (last visited Nov. 20, 2012); About WIPO, WORLD INTELL. PROP. ORG.,

http://www.wipo.int/treaties/en/convention/ summary_wipo_convention.html (last visited

Nov. 20, 2012). 92 Brief of Amicus Curiae the International Trademark Association in Support of a Petition

for a Writ of Certiorari to the Second Circuit Court of Appeals, Tiffany (NJ) Inc. v. eBay, Inc.,

600 F.3d 93 (2d Cir. 2010) (No. 10‐300), at 6.



broader power to regulate counterfeiting activity.93

In addition to legislative activism, these three organizations provide training to law enforcement agencies to help them accurately identify counterfeit goods,94 give legal assistance in the area of intellectual property,95 carry out policy and advocacy work,96 and host educational programs to help trademark owners stay informed on trademark issues.97 Through their efforts, the organizations hope to stress the importance of trademarks and trademark protection, and further an understanding of the critical role trademarks play in fostering informed decisions by consumers.98

C. State Enforcement

Since state law enforcement officers regularly interact with “local manufacturers, distributors, street vendors, retailers, ‘house parties’99 and others involved in the manufacture and sale of counterfeit merchandise,” they are often in the best position to enforce anti‐counterfeiting laws.100 Small‐scale seizures often lead to larger take‐downs and the discovery of organized crime rings.101 For instance, a routine bust in New York City in 2005 led to the discovery of a warehouse filled with counterfeit shoes, handbags, and clothing worth up to $2 million.102 The value of these small seizures in the overall fight against the production and sale of counterfeit

93 Larry Smith & Elizabeth Kaplan, IP Meets Eliot Ness…Smaller Firms Still Dominate High‐

Profile Anticounterfeiting Practice, 18 NO. 13 OF COUNSEL 32, 30 (1999). 94 See About the IACC, supra note 90. 95 About WIPO, supra note 91. 96 See, e.g., Policy and Advocacy, INT’L TRADEMARK ASS’N, http://www.inta.org/Advocacy/

Pages/main.aspx (last visited Nov. 20, 2012). 97 See, e.g. Programs and Events, INT’L TRADEMARK ASS’N, http://www.inta.org/Programs/

Pages/main.aspx (last visited June 4, 2012). 98 See Brief for Writ of Certiorari, supra note 92, at 4. 99 “House parties” are residential gatherings where people buy counterfeit items such as

handbags. Carolyn Marcelo, The Crimes of Fashion: The Effects of Trademark and Copyright

Infringement in the Fashion Industry, LIBERTY U. 25 (Spring 2011), http://digitalcommons.

liberty.edu (search “Carolyn Marcelo”). 100 Kolsun & McDonald, supra note 32, at 119‐20; see People v. Garcia, 124 Cal. Rptr. 3d 886,

888 (Cal. Ct. App. 2011) (noting a Los Angeles police officer discovered thousands of

counterfeit DVD’s after spotting the defendant leaving a building with suspiciously large

bags); People v. Levy, 940 N.E.2d 547, 547 (N.Y. 2010) (explaining how local police, in

executing a search warrant, found and seized counterfeit parts for Ford vehicles being used in

an auto parts shop). 101 Kolsun & McDonald, supra note 32, at 120. 102 Ross Tucker, NYPD Seizes $2M in Counterfeit Goods, WOMEN’S WEAR DAILY, Sept. 30,

2005.



goods has led many metropolitan areas to initiate special task forces dedicated to uncovering, investigating, and penalizing local counterfeiters.103 Local enforcement and seizures are one of the most valuable assets in anti‐counterfeiting programs.104

IV. Impact of Counterfeit Goods on Society

A. Effect on the United States Economy

In 1982, the International Trade Commission estimated that counterfeiting activity cost the global economy $5.5 billion.105 By 1996, the number increased to $200 billion, making it 4,000 times more costly than bank robberies.106 Today, it is estimated that up to seven percent of our annual world trade—$600 billion—is counterfeit.107 The tremendous growth of the counterfeit industry over the last few decades makes it one of the fastest growing and most profitable industries in the country.108 Business insiders call it “the crime of the twenty‐first century.”109

Specifically, American companies lose $250 billion annually due to counterfeiting.110 Of the $250 billion, the fashion industry absorbs $12 billion of the loss.111 It is estimated that one counterfeit bag is sold for every real one.112 These corporate losses translate into in job losses.113 It is reported that “750,000 jobs have been lost in the United States to

103 See Emili Vesilind, Los Angelesʹ Market for Counterfeit Fashion Evolves, LOS ANGELES

TIMES (July 26, 2009), http://articles.latimes.com/2009/jul/26/image/ig‐lafakes26 (noting that

LAPDʹs Anti‐Piracy Task Force is tasked with combating counterfeit activity); Mayor’s Office of

Special Enforcement, NYC.GOV, http://www.nyc.gov/html/mose/ (last visited Nov. 20, 2012)

(noting that New York City’s Office of Special Enforcement is responsible for coordinating

enforcement efforts against trademark counterfeiting bazaars). 104 Kolsun & McDonald, supra note 32, at 120. 105 Jeanne M. Kempthorne, New Penalties for Intellectual Property Offenses and Computer

Crime, 41 B. B.J. 8, 8 (May/June 1997); Facts on Fakes, supra note 8, at 3. 106 See Facts on Fakes, supra note 8, at 3 (noting that bank robberies “involve less than $50

million per year”). 107 Kristina Rae Montanaro, “Shelter Chic”: Can the U.S. Government Make it Work?, 42

VAND. J. TRANSNATʹL L. 1663, 1668 (2009); Wilcox, supra note 2, at 247. 108 Thomas C. OʹDonnell et al., The Counterfeit Trade, BUS. WEEK, Dec. 16, 1985, at 64. 109 David Stipp & Sheree R. Curry, Farewell, My Logo, FORTUNE, May 27, 1996, at 128‐29. 110 Giambarrese, supra note 58, at 282. 111 Wilcox, supra note 2, at 247. 112 Tina Cassidy, Bagging the Knockoffs There’s Nothing Like the Real Thing, BOSTON GLOBE,

Dec. 26, 2002, at D1. 113 Grace Pyun, The 2008 Pro‐IP Act: The Inadequacy of the Property Paradigm in Criminal

Intellectual Property Law and Its Effect on Prosecutorial Boundaries, 19 DEPAUL J. ART, TECH. &

INTELL. PROP. L. 355, 380 (2009).



counterfeiters.”114 Approximately 100,000 of those jobs were lost in Los Angeles alone.115

Since counterfeiters do not pay business income tax, personal income tax, or employee tax, and purchasers do not pay sales tax, the United States also loses substantial tax revenue.116 New York City loses approximately “$380 million in lost taxes, $290 million in lost business income taxes, and $360 million in lost personal income taxes” annually because of counterfeit sales.117 Similarly, in 2005, Los Angeles “lost $40 million due to counterfeit products.”118 These economic effects are felt in many areas, as the tax revenue lost results in fewer schools, hospitals, police, and roads.119

B. Support of Criminal Activity

Organized crime and terrorism are becoming increasingly entwined with the sale of counterfeit goods.120 It only costs $1.25 to manufacture a fake Louis Vuitton bag in Hong Kong and ship it to the United States.121 That same counterfeit bag can be sold to a U.S. buyer for anywhere from $30 to $120, while a genuine Louis Vuitton bag sells for $1,200 to $1,400.122 The quick and lucrative profit makes trademark counterfeiting appealing to criminal groups.123

Organized crime groups often use proceeds from counterfeit sales to

114 Fox, supra note 4. 115 Marcelo, supra note 99. 116 Katherine C. Spelman, What’s New in Anti‐Counterfeiting, 1022 PLI/PAT 379, 384 (2010). 117 Id.; see also Fox, supra note 4 (noting that counterfeiting causes $1 billion in tax revenue

losses each year for New York City). 118 Marcelo, supra note 99. 119 Amy Frerichs, Attitudes Towards Counterfeit Fashion Products: A South Dakota State

University Case Study, S. DAKOTA ST. U. 21,

http://www.sdstate.edu/jur/2008/upload/AttitudesTowardCounterfeitFashionProductsASouth

DakotaStateUniversityCaseStudy.pdf (last visited Nov. 28, 2012). 120 Spelman, supra note 116, at 385; Jacqueline Morales, Legal Developments in Trademark

Counterfeiting, U.S. PAT. AND TRADEMARK OFF., http://www.ipo.org/AM

/Template.cfm?Section=Patent_And_Trademark_Office_Day2&Tempate=/CM/ContentDisplay

.cfm&ContentID=16801 (last visited Jun. 14, 2012) (connecting trademark counterfeiting to

organized crime and terrorist activity). 121 Giambarrese, supra note 58, at 278; Contreras, supra note 3. 122 Contreras, supra note 3. 123 Stop Counterfeiting in Manufactured Goods Act, Pub. L. No. 109‐181, § 1(a)(2)(E), 120

Stat. 285, 285 (2006) (noting that ties between trademark counterfeiting and terrorism have

been established); Sam Cocks, The Hoods Who Move the Goods: An Examination of the Booming

International Trade in Counterfeiting Luxury Goods and an Assessment of the American Efforts to

Curtail Its Proliferation, 17 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 501, 517 (2007).



fund drug trafficking, prostitution, and money laundering schemes.124 In 1993, New York law enforcement raided a warehouse to seize counterfeit handbags.125 In addition to the fake bags, they discovered illegal drugs sewn into the seams of the bags.126 The counterfeiters used the handbags to transport and sell the drugs and sell the bags, getting rid of the evidence.127 Similarly, in July 2002, a New York raid seized 5,000 fake Rolex watches and Mount Blanc pens, $1 million, and discovered that the defendants sold counterfeit goods to launder their drug money.128

Terrorist activity is also linked to the manufacture and distribution of counterfeit products.129 A seizure of Al Qaeda terrorist training manuals confirmed that the sale of counterfeit products is an encouraged way to fund terrorist operations.130 In 1999, the International Chamber of Commerce reported the Irish Republican Army was financing its terrorist activities through counterfeit videos such as the Lion King.131 Similarly, the FBI gathered evidence indicating that the 1993 terrorist bombing of the World Trade Center was supported by proceeds earned through the sale of counterfeit textile goods on Broadway Avenue in New York City.132 While the FBI has not confirmed it, there is speculation that the 2001 terrorist attack on the World Trade Center was once again funded by the sale of counterfeit fashion items.133

124 Kate Goldwasser, Knock It Off: An Analysis of Trademark Counterfeit Goods Regulation in

the United States, France, and Belgium, 18 CARDOZO J. INTʹL & COMP. L. 207, 209 (2010); Fox,

supra note 4. 125 Facts on Fakes, supra note 8, at 9. 126 Anticounterfeiting Consumer Protection Act of 1995, S. Rep. No. 104‐177, at 5 (1995);

Facts on Fakes, supra note 8, at 9. 127 See Facts on Fakes, supra note 8, at 9. 128 Scott Shifrel, 3 Charged In Money Laundering, NYDAILYNEWS.COM (July 11, 2002),

http://articles.nydailynews.com/2002‐07‐11/local/18201150_1_money‐laundering‐hong‐kong‐

genuine‐rolex. 129 Kolsun & McDonald, supra note 32, at 112; Gabrielle Levin, Desperate Times, Desperate

Measures? Reconceptualizing Ex Parte Seizure Orders to More Effectively Fight the War on

Trademark Counterfeiting, 14 U. BALT. INTELL. PROP. L.J. 171, 174 (2006). 130 IP Crimes and the Ties to Terrorism, INTELL. PROP. CRIMES,

http://investigativeconsultants.com/ipcrimes/html/terrorism.html (last visited Nov. 20, 2012). 131 Kathleen Millar, Financing Terror: Profits From Counterfeit Goods Pay for Attacks, U.S.

CUSTOMS TODAY (Nov. 2002), http://www.cbp.gov/xp/CustomsToday/2002/November

/interpol.xml. 132 James Nurton, How to Beat the Pirates, MANAGING INTELL. PROP., Sept. 2002, at 43; Willy

Stern, Why Counterfeit Goods May Kill, BUS. WEEK, Sept. 2, 1996, at 6. 133 See Betsy Streisand, Jingle All the Way?, U.S. NEWS & WORLD REP., Dec. 16, 2002, at 36;

Roslyn A. Mazer, From T‐Shirts to Terrorism: That Fake Nike Swoosh May Be Helping to Fund Bin

Ladenʹs Network, WASH. POST, Sept. 30, 2001, at B2.



C. Threat to Health and Safety

Counterfeiting is lucrative because counterfeiters find methods to manufacture their products in the least costly way.134 To do so they make inferior products,135 and do not abide by labor regulations.136 Counterfeiters use toxic chemicals and dyes when producing garments that can burn and irritate the skin.137 Sunglasses, which make up a large portion of counterfeit fashion sales, are often not made with the required shatterproof lens and ultraviolet ray protection.138 Wearing sunglasses without ultraviolet ray protection may lead to cataracts, skin cancer around the eyes, and the burning of the front surface of the eye.139 When counterfeiting luxury perfumes, counterfeiters often use bacteria, antifreeze, and even urine as active ingredients.140 Since perfume is absorbed into the skin, these ingredients are life threatening.141

Consumers of counterfeit products are not the only people at risk—the health and safety of counterfeit manufacturers are also in danger.142 Anti‐counterfeiting investigators in Asia report that factories producing counterfeit products are kept in “deplorable conditions that would boggle your mind.”143 It is not uncommon to see children as young as four years old mixing dangerous and deadly chemicals for the production of the

134 See Barbara Kolsun & Jonathan Bayer, Indirect Infringement and Counterfeiting: Remedies

Available Against Those Who Knowingly Rent to Counterfeiters, 16 CARDOZO ARTS & ENT. L.J. 383,

383 & n.6 (1998) (noting that high profit margins in counterfeiting make it very lucrative). 135 See U.S. v. Nweke, 340 Fed. Appx. 237, 239 (5th Cir. 2009) (explaining how the

counterfeit goods were so inferior that they could not be mistaken for the genuine product);

Eric R. Waltmire, How to Secure Your Client’s Brand Against Counterfeiting Operations in Asia, 22

DCBA BRIEF 46, 46 (Oct. 2009) available at http://www.dcbabrief.org/ vol221009art5.html

(noting that counterfeiting products are often inferior). 136 See Malletier v. Lincoln Fantasy, 2006 WL 2129025, at *4 (D. Puerto Rico 2006) (noting

that trademark counterfeiting fosters child labor); Jenny T. Slocum & Jess M. Collen, The

Evolving Threat and Enforcement of Replica Goods, 33 W. NEW ENG. L. REV. 789, 794 (2011). 137 Frerichs, supra note 119, at 24; Counterfeit Clothing a Growing Problem, JUST‐STYLE.COM

(June 17, 2008), http://www.just‐style.com/analysis/counterfeit‐clothing‐a‐growing‐

problem_id101100.aspx. 138 Rosenberg, supra note 15, at 117; Cynthia Nellis, Faking It: Counterfeit Fashion,

ABOUT.COM, http://fashion.about.com/cs/tipsadvice/a/fakingit.htm (last visited Nov. 20, 2012). 139 See Prevent Eye Damage: Protect Yourself from UV Radiation, U.S. ENVTL. PROTECTIONS

AGENCY (Aug. 2010), http://www.epa.gov/sunwise/doc/eyedamage.pdf. 140 Leamy & Weber, supra note 10. 141 Id. 142 Fox, supra note 4 (noting that counterfeits are often produced in factories who disregard

labor standards). 143 Id. (quoting Lorne Lipkus of the Canadian Anti‐Counterfeiting Network).



counterfeit items.144

Dana Thomas, a journalist who specializes in the fashion industry, “remember[s] walking into an assembly plant in Thailand a couple of years ago and seeing six or seven little children, all under 10 years old, sitting on the floor assembling counterfeit leather handbags.”145 A counterfeit investigator told her that “[t]he owners had broken the children’s legs and tied the lower leg to the thigh so the bones wouldn’t mend. [They] did it because the children said they wanted to go outside and play.”146 This vignette is one of the countless stories demonstrating the harm caused by buying counterfeit goods and the many victims of what many consumers view as bargain shopping.147

ANALYSIS

V. Criminalizing the Knowing Purchase of Trademark Counterfeit Fashion Items

Until there is no market demand for counterfeit fashion items, the United States will continue to lose the battle against trademark counterfeiting.148 Congress has continuously increased the penalties for the sale of these goods.149 In addition, extra support is provided by intellectual property organizations,150 law enforcement efforts,151 and fashion companies.152 The public is aware of the impact the counterfeiting industry

144 Id. 145 Dana Thomas, Fight Against Fake Designer Goods Isn’t Frivolous, TODAY (Jan. 9, 2009,

9:38 a.m.), http://today.msnbc.msn.com/id/28571321/ns/today‐style/t/fight‐against‐fake‐

designer‐goods‐isnt‐frivolous/. 146 Id. 147 Marcelo, supra note 99, at 22 (“[M]any cases [exist] in which children are working

endlessly to make clothes in working conditions that are close to slavery.”). 148 See Cunningham, supra note 18, at 3‐4 (suggesting that holding end‐consumers of

counterfeit products liable may be the best way to stop the manufacture and distribution of

the goods). In 2011, New York City Council woman Margaret S. Chin, submitted a bill to

make buying fake designer brands illegal in the state of New York. No decision on the bill has

been made as of February 2012. Ashley Parker, Counsel Member Seeks to Make Buying Fake

Designer Brands a Crime, N.Y. TIMES, Apr. 26, 2011, http://www.nytimes.com/2011/04/27

/nyregion/bill‐aims‐to‐make‐buying‐fake‐goods‐a‐crime‐in‐new‐york.html. 149 KANE, supra note 30, at § 8:3:1[A] (commenting on the increases in civil and criminal

penalties for counterfeit activity). 150 About IACC, supra note 91 (noting the IACC “is the worldʹs largest non‐profit

organization devoted solely to protecting intellectual property and deterring counterfeiting”). 151 Kolsun & McDonald, supra note 32, at 117 (explaining Customs and Border Protection

and Immigration and Customs Enforcement play an intricate role in patrolling the

importation of counterfeit goods). 152 Leamy & Weber, supra note 10 (noting that Harper’s Bazaar has dedicated itself to

preventing counterfeiting).



has on the U.S. economy, organized crime and terrorism, and health and safety.153 But the counterfeiting industry continues to boom.154 The epidemic has risen to the point where it is necessary to hold consumers accountable for their contribution to the illegal world of counterfeiting.155 This Note proposes a uniform law establishing criminal liability for the knowing purchase of trademark counterfeit fashion items.156 Criminal penalties for a similar activity are already embodied in our criminal code and embraced by society.157 The crime of receiving stolen property provides grounds for criminal liability of purchasers of counterfeit fashion goods.158

A. Receiving Stolen Property

Section 223.6 of the Model Penal Code provides, “[a] person is guilty of theft if he purposely receives . . . property of another knowing that it has been stolen, or believing that it has probably been stolen . . . .”159 Under the Model Penal Code, the term “receiving” is defined as “acquiring possession . . . of the property.”160 As individual states have adopted this uniform law, they have further defined the meaning of “receiving.”161 In California, the act of receiving is satisfied by the purchase or acceptance of stolen goods.162 Similarly, Massachusetts law provides that receiving is

153 See City, Harperʹs Bazaar Unveils New Anti‐Counterfeiting Campaign, NY1 YOUR CITY,

YOUR NEWS, May 13, 2008, http://www.ny1.com/content/top_stories/81553/city‐‐harper‐s‐

bazaar‐unveils‐new‐anti‐counterfeiting‐campaign [hereinafter Harperʹs Bazaar]; Public

Awareness Campaigns, INT’L ANTICOUNTERFEITING COALITION, https://iacc.org/about‐

counterfeiting/public‐awareness‐campaigns.php (last visited Jun. 4, 2012) (highlighting the

IACC’s anti‐counterfeiting campaign). 154 Bitton, supra note 14 (representing that counterfeiting presently costs the global

economy $600 billion annually). 155 Rosenberg, supra note 15 (concluding that government would be well advised to

consider criminal penalties for consumers who knowingly buy counterfeit products). 156 See Silverman, supra note 40, at 219‐20 (calling for the United States to adopt an

administrative fine for individuals who knowingly purchase counterfeit goods like Italian

law). 157 See Model Penal Code § 223.6 (1980). 158 See id. 159 Id.; accord Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa. Super. Ct. 2002) (noting

that the prosecution must show that the property was stolen, the defendant had possession of

the stolen property, and that the defendant knew or should have known the property was

stolen in order to obtain a conviction for receiving stolen property). 160 Model Penal Code § 223.6. 161 See Commonwealth v. Cromwell, 761 N.E.2d 530, 532 (Mass. App. Ct. 2002) (noting that

in Massachusetts the elements of receiving stolen property are established if one knowingly

buys, receives or aids in the concealment of stolen goods). 162 People v. Smith, 161 P.2d 941, 943 (Cal. 1945).



satisfied by the acceptance, purchase, or concealment of stolen goods.163 In New York the act of buying, concealing, or withholding stolen property satisfies the element of receiving.164

Likewise, state case law has further defined the element of knowledge that is found in § 223.6 of the Model Penal Code.165 Courts no longer require actual knowledge that the goods were stolen.166 A prosecutor only needs to establish that the defendant had “reasonable cause to believe that the goods were stolen.”167 Furthermore, the element of knowledge can be proven through circumstantial evidence.168 In Commonwealth v. Harrison, the Superior Court of Pennsylvania considered the defendant’s conduct, his relationship to the victim of the theft, the time that had elapsed between his possession of the property and the theft, and the distance between where the theft occurred and where the stolen property was found to conclude that the defendant was guilty of knowingly receiving stolen property.169

B. The Proposed Uniform Law for the Crime of the Knowing Purchase of Trademark Counterfeit Fashion Items

Under the modern view that trademarks are an owner’s property, counterfeiting the mark is equivalent to theft,170 and the subsequent purchase of the stolen mark is analogous to receiving stolen property.171 Because of the similarity between receiving stolen property and buying counterfeit fashion items this Note proposes a uniform law stating: No person shall purchase a fashion item bearing a counterfeit trademark when such person knows or reasonably should have known such trademark is counterfeit.172

163 Cromwell, 761 N.E.2d at 532. 164 See William C. Donnino, “Practice Commentary” to N.Y. PENAL LAW § 165.40

(McKinney 2010). 165 State v. Underwood, 668 A.2d 447, 449 (N.J. Super Ct. App. Div. 1995); Finberg v. Lean

(In re Lean), 18 B.R. 189, 191 (Bankr. E.D. Pa. 1982); Commonwealth v. Harrison, 432 A.2d

1083, 1088 (Pa. Super. Ct. 1981). 166 Underwood, 668 A.2d at 449; In re Lean, 18 B.R. at 191. 167 In re Lean, 18 B.R. at 191. 168 Harrison, 432 A.2d at 1088. 169 Id. 170 Kolsun & McDonald, supra note 32, at 107 (showing that trademark counterfeiting is

intellectual property theft). 171 See Model Penal Code § 223.6. 172 See id.



1. Establishing the Purchase Element

While the proposed counterfeit law is similar to the law governing receiving stolen property, it is distinguishable in that the act of receiving is limited to the “purchase” of the counterfeit good.173 Mere possession or acceptance of a counterfeit fashion item is not sufficient to violate the crime.174 To satisfy the element of “purchase” under the proposed law, an individual must obtain ownership or possession of the counterfeit fashion item through the exchange of “money or its equivalent.”175

2. Establishing the Knowledge Element

Most individuals who purchase trademark counterfeit fashion items possess the actual knowledge that they are not buying an authentic good.176 They want the look and status that luxury fashion items provide, but either do not have or do not want to spend the money for the genuine product.177 While an individual purchaser might have actual knowledge, it may be hard to prove if they deny it.178 Therefore, like the crime of receiving stolen property, the knowledge element for the crime of purchasing trademark counterfeit fashion items can be satisfied through circumstantial evidence.179 The circumstantial evidence that establishes an individual knew or reasonably should have known a trademark is counterfeit includes: (1) the location of the purchase; (2) the price of the good; and (3) the quality of the product.180

Counterfeit fashion items are typically purchased on the street, out of a car trunk, in back alleys, or in public markets.181 For instances, street vendors dealing in counterfeits often whisper designer names as people walk by, if the passerby is interested in viewing the merchandise they are often led to basements and back rooms where the illegal products are

173 See supra text accompanying note 171. 174 See supra text accompanying note 171. 175 See THE MERRIAM‐WEBSTER DICTIONARY 1010 (11th ed., Merriam‐Webster Inc. 2003). 176 Wilcox, supra note 2, at 247 (noting that consumers often knowingly buy counterfeit

luxury items). 177 See Fox, supra note 4 (explaining that the purchase of counterfeit goods is considered

bargain shopping). 178 See Andrea Sloan Pink, Copyright Infringement Post Isoquantic Shift: Should Bulletin Board

Services be Liable?, 43 UCLA L. REV. 587, 624 (1995) (noting that actual knowledge is a more

difficult burden to prove). 179 See Commonwealth v. Phillips, 392 A.2d 708, 709 (Pa. 1978) (providing that

circumstantial evidence can establish knowledge that property was stolen). 180 Nellis, supra note 138. 181 See Cunningham, supra note 18, at 4.



stored.182 Commonsense tells us that high fashion designers like Louis Vuitton, Chanel, or Burberry do not sell their luxury goods priced in the thousands in these places and manner.183 Authentic items are only sold by “authentic dealers for the designer and official retailers” such as department stores.184 Therefore, one who purchases goods in places like basements, back alleys, and car trunks either knew or reasonably should have known that the goods were counterfeit.185

Similarly, if the price “seems too good to be true, it probably is.”186 Counterfeit goods are considerably less expensive than their authentic counterparts.187 Anti‐counterfeiting investigators hired by Louis Vuitton report that authentic bags that cost $1,200 to $1,400 sell for about $30 to $40 as counterfeits at flea markets.188 The drastic price discrepancy is sufficient to prove an individual purchaser reasonably should have known the product was a counterfeit.189

Finally, the quality of the product can distinguish an authentic good from a counterfeit.190 Visual clues such as poor or uneven stitching, glued on labels, poor quality zippers, and misspelled words all support the conclusion that an item is a counterfeit.191 Additionally, luxury retailers take special care in packaging their products.192 They wrap products in tissue paper, provide authenticity and product care information, and use quality boxes and shopping bags.193 In contrast, counterfeiters cover items in plastic wrap or dust bags, and wrap the handles of handbags in plastic and scotch tape.194 By evaluating the purchase location, price, and quality

182 Marcelo, supra note 99, at 5. 183 See Frerichs, supra note 119, at 22. 184 Id.; accord How to Spot a Fake Louis Vuitton Handbag, BAGBLISS, http://www.bagbliss.com/

counterfeits/louis‐vuitton/ (last visited Nov. 20, 2012) [hereinafter How to Spot a Fake]

(explaining that authentic Louis Vuitton items are exclusively sold in their own stores, over

the phone, or on their own website, not on the street). 185 See How to Spot a Fake, supra note 184. 186 Fact Sheets: Protecting a Trademark, INT’L TRADEMARK ASS’N, http://www.inta.

org/TrademarkBasics/FactSheets/Pages/Counterfeiting.aspx (last visited Nov. 28, 2012). 187 Contreras, supra note 3. 188 Id. 189 See The Fact Sheets, Protecting a Trademark, supra note 186. 190 Misty Huber, How to Tell a Real Juicy Couture From a Fake, EHOW.COM, http://www.

ehow.com/how_5905235_tell‐real‐juicy‐couture‐fake.html (last visited Nov. 20, 2012). 191 Id. 192 Ali Datko, Fake vs. Real Louis Vuitton Purses, EHOW STYLE,

http://www.ehow.com/info_8675415_fake‐real‐louis‐vuitton‐purses.html (last visited Nov. 28,

2012). 193 Id. 194 Id.



an individual’s knowledge can be established.195

C. The Penalty for Violating the Crime of the Knowing Purchase of Trademark Counterfeit Fashion Items.

A survey of state penalties for receiving stolen goods shows that most states classify the crime as either a misdemeanor or felony depending on the value of the property received and a person’s criminal history.196 It also provides that a person convicted of the crime could receive a punishment in the form of a fine, imprisonment, or both.197 In Massachusetts, if the value of the property received is less than two hundred and fifty dollars and it is the person’s first offense, the crime will be charged as a misdemeanor subject to imprisonment of “not more than two and one half years, or by a fine of not more than two hundred and fifty dollars.”198 However, if the value is two hundred and fifty dollars or greater or it is a subsequent offense the crime will be charged as a felony subject to imprisonment of “not more than five years . . . or by a fine of not more than five hundred dollars.”199

While the goal of a criminal penalty for receiving stolen property is to punish offenders, the goal of a criminal penalty for the knowing purchase of trademark counterfeit fashion items is deterrence.200 Because of this difference in rationale, a less severe criminal classification and penalty are appropriate for the proposed new law.201 Deterrencecan be accomplished through a misdemeanor classification punishable by a flat‐rate, fine‐only

195 Nellis, supra note 138. 196 E.g., Receiving Stolen Property California Penal Code 496 PC, SHOUSE LAW GROUP,

http://www.shouselaw.com/stolen‐property.html (last visited June 4, 2012) [hereinafter

SHOUSE LAW GROUP]; Receiving Stolen Property, LAW OFFICES OF KATHLEEN M. MCCARTHY,

http://www.kmmdefense.com/lawyer‐attorney‐1331163.html (last visited Nov. 20, 2012)

[hereinafter MCCARTHY]; see generally Receipt of Stolen Property,

CRIMINALDEFENSELAWYER.COM, http://www.criminaldefenselawyer.com/crimepenalties/

federal/Receipt‐ofStolenProperty.htm (last visited Nov. 20, 2012). 197 MASS. GEN. LAWS ch. 266, § 60 (2010); SHOUSE LAW GROUP, supra note 196; Receiving

Stolen Property in Mississippi, MISS. CRIM. DEF. BLOG (July 25, 2011),

http://mississippicriminaldefenseblog.com/2011/07/25/receiving‐stolen‐property‐in‐

mississippi/. 198 MASS. GEN. LAWS ch. 266, § 60; accord MCCARTHY, supra note 196. 199 MASS. GEN. LAWS ch. 266, § 60; accord MCCARTHY, supra note 196. 200 See Cunningham, supra note 18, at 3‐4 (noting that deterrence through consumer

liability may be the most effective way to solve the trademark counterfeiting problem). 201 See Doris Layton MacKenzie, Criminal Justice and Crime Prevention, NAT’L CRIM. JUST.

REFERENCE SERVICE, https://www.ncjrs.gov/works/chapter9.htm (last visited Nov. 20, 2012)

(explaining that “fines may act as a deterrent to criminal activities”).



penalty of two hundred and fifty dollars.202

D. The Enforcement of the Crime of the Knowing Purchase of Trademark Counterfeit Fashion Items

After a police officer witnesses a knowing purchase of a counterfeit fashion item—either through observation or a sting operation—this Note proposes that a summons or citation be issued to the individual as long as there are no exigent circumstances making an arrest necessary.203 When enforcing criminal laws, police officers have the authority to either arrest or issue a summons or citation to an alleged offender.204 The issuance of a summons or citation charges the person with the offense and requires them to appear before a magistrate.205 In determining whether to make an arrest or use a summons or citation police officers weigh the need to obtain proper identification of the person, the risk of the person not appearing in court, and the threat the person possesses to society.206

While the booking process of an arrest includes taking a photograph and gathering the offender’s fingerprints,207 it is not the only way to ensure proper identification of a suspect.208 “An officer issuing a summons or citation could take a photograph and even obtain fingerprints” in the field.209 Additionally, individuals who commit minor offenses, or who do not think their behavior is criminal, are not likely to be carrying false

202 See Silverman, supra note 40, at 205‐06 (explaining that both Italy and France currently

use end‐consumer monetary fines in their anti‐counterfeiting programs). 203 See Brief of the Institute on Criminal Justice as the University of Minnesota Law School

and Eleven Leading Experts on Law Enforcement and Corrections Administration and Policy

as Amici Curiae in Support of Petitioners, Atwater v. City of Lago Vista, 530 U.S. 1260 (2000)

(No. 99‐1408), 2000 WL 1341293, at *2 [hereinafter Brief for the Petitioners] (providing that an

“arrest for a non‐jailable misdemeanor is rarely necessary or justifiable”). 204 Alicia A. DʹAddario, Policing Protest: Protecting Dissent and Preventing Violence Through

First and Fourth Amendment Law, 31 N.Y.U. REV. L. & SOC. CHANGE 97, 107 (2006) (noting how

police officers have discretion to decide whether to arrest, or issue a summons or citation). 205 Stephen A. Saltzburg, The Fourth Amendment: Internal Revenue Code or Body of Principles?,

74 GEO. WASH. L. REV. 956, 1001 (2006). 206 Id. at 1002. 207 Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431, 1439 (1992)

(explaining that after making the arrest, the suspect was booked, fingerprinted, and

photographed). 208 See, e.g., Hayes v. Florida, 470 U.S. 811, 816 (1985) (noting that the collection of

fingerprints in the field by police officers does not necessarily violate the Fourth Amendment);

United States v. Hensley, 469 U.S. 221, 232 (1985) (explaining that a police officer may stop a

suspect, check his identification, ask him questions, and briefly detain him in order to gather

information). 209 Saltzburg, supra note 205, at 1002.



identification, which itself may be a more severe offense.210 Since the proposed crime for the knowing purchase of counterfeit fashion items is a minor non‐jailable offense, individuals will likely comply with an officer’s request for identification, a field photograph, and fingerprinting, rather than being arrested.211

An arrest may seem like the only way to guarantee a suspect will appear in court.212 However, this may not be necessary in the case of minor offenses.213 Since the penalty for failing to appear in court is often greater than the penalty for a minor offense, a minor offender has a great incentive to make their court appointment.214 An “arrest for a non‐jailable misdemeanor is rarely necessary or justifiable.”215 The penalty for the proposed crime is likely less severe than the penalty for not appearing in court, thus, it is unlikely a person would not appear.216

Finally, an arrest removes dangerous individuals from society.217 It allows the public to feel safe in their community knowing that the threat has been taken away, and will not be let go until a magistrate takes a closer look and determines whether the individual should be released.218 However, not all people who commit criminal offenses possess a danger to society.219 Minor offenders may not require the drastic act of arrest, and may be better served through a summons or citation.220 Since the act of knowingly purchasing trademark counterfeit fashion goods does not support a conclusion that the person is a threat to society, there is no need

210 See id. 211 See id. 212 See United States v. Scott, 450 F.3d 863, 865 (9th Cir. 2006) (providing that an arrest

ensures a defendant’s presence in court); Brief of Amicus Curiae Texas Criminal Defense

Lawyers Association in Support of Petitioners, Atwater v. City of Lago Vista, 530 U.S. 1260

(2000) (No. 99‐1408), 2000 WL 1299521, at * 3 [hereinafter Brief] (noting that the reason why

police arrest a suspect is to ensure that he will appear in court). 213 Brief, supra note 212 (explaining that a person who has committed a criminal traffic

violation but has provided their license and signed a promise to appear in court does not need

to be arrested to ensure his appearance in court). 214 Saltzburg, supra note 205, at 1002. 215 Brief for the Petitioners, supra note 203. 216 See Saltzburg, supra note 205, at 1002. 217 Shawn M. Mamasis, Fear of the Common Traffic Stop—“Am I Going to Jail?” The Right of

Police to Arbitrarily Arrest or Issue Citations for Minor Misdemeanors in Atwater v. City of Lago

Vista, 27 T. MARSHALL L. REV. 85, 107 (2001) (noting that the theory of arrest is to segregate

individuals who are a threat to society). 218 Saltzburg, supra note 205, at 1002. 219 Id. 220 Id.



to detain these individuals.221

VI. Possible Criticisms of the Proposed Uniform Law

A. The Severity of Criminal Punishment

Some may argue that the introduction of a criminal penalty for the knowing purchase of trademark counterfeit fashion merchandise is too severe.222 However, criminal penalties for a similar activity—receiving stolen property—is already embodied in our criminal code and embraced by society.223 In view of the current trend to recognize trademark counterfeiting as stealing another’s intellectual property, the subsequent purchase of these fashion items is directly in line with the crime of receiving stolen property and its penalty.224

Additionally, the harm to the U.S. economy requires strong penalties against individuals who contribute to its financial depletion.225 Counterfeiters are not harmless con artists or poor street peddlers; they are players in an illegal industry that make $600 billion dollars annually while U.S. citizens lose jobs and community services.226 More than 13.3 million Americans are currently unemployed; regaining the jobs that counterfeiting steals is essential.227

The purchase of counterfeit fashion items also funds terrorist acts on U.S. soil, and supports the enslavement of child laborers;228 not to mention that a purchaser’s counterfeit handbag may have the remains of trafficked drugs in its inseam.229 Considering the harm that the purchase of counterfeit fashion items has on society, a misdemeanor punishable by a flat‐rate, fine‐only penalty of two hundred and fifty dollars more than fits

221 See id. (suggesting that since not all criminal activity poses an immediate risk to the

public, it is not always necessary detain every criminal). 222 Silverman, supra note 40, at 207 (arguing that criminal penalties for the purchase of

counterfeit goods is disproportionate to the act). 223 See Model Penal Code § 223.6. 224 See id. (providing that a person is guilty of receiving stolen property if they receive it

knowing or believing that it has been stolen). 225 See Rosenberg, supra note 15, at 116 (concluding that the government would be well

advised to consider criminal penalties for consumers who knowingly buy counterfeit

products). 226 Facts on Fakes, supra note 8, at 3. 227 See US Unemployment Rate Drops Sharply, VOICE OF AM. (Dec. 1, 2011), http://www.

voanews.com/english/news/usa/US‐Unemployment‐Rate‐Drops‐Sharply‐134901378.html. 228 Facts on Fakes, supra note 8, at 5; Fox, supra note 4. 229 See Anticounterfeiting Consumer Protection Act of 1995, S. Rep. No. 104‐177, at 5 (1995);

Facts on Fakes, supra note 8, at 9.



the crime.230

Finally, the current criminalization of other less severe activity supports the criminalization of the knowing purchase of counterfeit fashion items.231 Our legal system embraces the criminalization of disturbing the peace,232 failure to pay a highway toll,233 smoking on subway platforms,234 and even jaywalking, none of which result in harms to the level that is caused by the purchase of trademark counterfeit goods.235 Based on the harms counterfeiting causes and current criminalized behavior, criminal punishment for the knowing purchase of trademark counterfeit fashion items fits within our criminal justice system.236

B. The Burden the New Law Puts on Law Enforcement and the Court System

A concern that arises with the passage of a new criminal law is the burden it may put on law enforcement237 and the court system.238 The

230 See supra Part IV.A‐C. 231 See IDAHO CODE ANN. § 18‐6409 (2007) (providing that any person who disturbs the

peace is subject to a misdemeanor); ARIZ. REV. STAT. ANN. § 13‐2904 (2010) (explaining that a

person who commits disorderly conduct with the intent to disturb the peace is subject to a

class 1 misdemeanor). 232 IDAHO CODE ANN. § 18‐6409; ARIZ. REV. STAT. ANN. § 13‐2904. 233 Ruth E. Sternglantz, Raining on the Parade of Horribles: Of Slippery Slopes, Faux Slopes, and

Justice Scalia’s Dissent in Lawrence v. Texas, 153 U. PA. L. REV. 1097, 1112 (2005) (citing Atwater

v. City of Lago Vista, 532 U.S. 318, 371 (2001) (O’Conner, J., dissenting)) (noting that both

littering and not paying a highway toll are fine only misdemeanors in Texas). 234 MASS. GEN. LAWS ch. 272, § 43A (2010) (providing that a person who smokes in a

terminal operated by the Massachusetts Bay Transportation Authority “shall be punished by

imprisonment for not more than ten days or by a fine of not more than one hundred dollars,

or both such fine and imprisonment”). 235 Pedestrian Struck Near Orange Coast College Campus, LEDGER & ASSOCIATE,

http://www.ledgerlaw.com/personal‐injury‐lawyer/car‐accident‐lawyer/pedestrian‐struck‐

near‐orange‐coast‐college‐campus/ (last visited May 30, 2012) [hereinafter LEDGER &

ASSOCIATE] (explaining that jaywalking is a misdemeanor offense in most California

jurisdictions). 236 See MASS. GEN. LAWS ch. 266, § 60; LEDGER & ASSOCIATES, supra note 235. 237 See Daniel Booth, Federalism on Ice: State and Local Enforcement of Federal Immigration Law,

29 HARV. J.L. & PUB. POLʹY 1063, 1064 (2006) (explaining that opponents of new laws allowing

state and local law enforcement to carry out federal immigration laws would overburden

these law enforcement entities). 238 See Sara Sun Beale, The Unintended Consequences of Enhancing Gun Penalties: Shooting

Down the Commerce Clause and Arming Federal Prosecutors, 51 DUKE L.J. 1641, 1649‐51 (2002)

(noting that Senator DʹAmato’s proposal to make murders committed with a handgun that

traveled interstate a federal crime was rejected for fear the new federal crime would

overburden the court system).



burden to law enforcement can come in the form of training239 and enforcement resources.240 While in some instances training on a new law may be extensive, this is not the case with the proposed law since police officers have already been trained to identify counterfeits and enforce the existing laws against the manufacture and distribution of counterfeit goods.241 The proposed law is merely an extension of enforcement against counterfeit activity.242 The law will give enforcement entities another weapon in their fight against counterfeiting.243

Additionally, the burden on police resources can be mitigated.244 Unlike some crimes that can occur anywhere, counterfeiting activity tends to occur and reoccur in certain areas known to police officers.245 By strategically focusing on “high counterfeiting” areas, costs can be reduced and resources can be preserved.246 While the cost of law enforcement cannot be totally eliminated, states and cities plagued by counterfeiting activity may be able to recoup their costs through the criminal fines imposed247 and on the tax revenue they regain when counterfeit sales are prevented.248

While new criminal laws may burden the court system, the recommended language of the new proposed law eliminates any unnecessary burden and confusion.249 Under the proposed law, the main element of the crime—knowledge—can be established through circumstantial evidence.250 Since imputed knowledge is a lower burden to

239 See TEX. ADMIN. CODE tit. 37, § 217.11 (2012) (noting that officers are required to take

continuing education classes that cover changes in the law). 240 Silverman, supra note 40, at 218 (explaining that law enforcement costs are always a

concern when enacting a criminal statute). 241 18 U.S.C. § 2320(a)(1) (Supp. 2011) (showing that it is already illegal to knowingly sell

counterfeit trademark items). 242 See id. (providing thatcurrent law covers the sale of counterfeit trademark goods). 243 See id. (noting it is already criminal to knowingly sell counterfeit trademark items). 244 See Whren v. United States, 517 U.S. 806, 808 (1996) (explaining that police officers

target locations known to be high‐drug areas in their fight against drugs). 245 Vesilind, supra note 103 (explaining that Santee Alley is Los Angeles’s “ground zero for

counterfeit fashion” items); Guide to Buying Fake Handbag in New York City, NEW YORK SHOW

TICKET, http://www.nytix.com/NewYorkCity/articles/handbags.html (last visited Mar. 10,

2012) (noting that Canal Street has the best counterfeit handbags). 246 Cf. Whren, 517 U.S. at 808 (showing that police patrol areas and target locations known

to be high drug areas in their fight against drugs). 247 Silverman, supra note 40, at 218‐19. 248 See Fox, supra note 4. 249 See Silverman, supra note 40, at 219 (noting that laws that include an imputed

knowledge, rather than actual knowledge, requirement increase judicial efficiency). 250 See supra Part V.B.2.



prove than actual knowledge court proceeding can run quicker and more efficiently.251

Additionally, the burden on the court system is minimized by the proposed law’s penalty.252 By using a flat‐rate, fine‐only penalty of two hundred and fifty dollars for all violators, the bright‐line penalty removes the burden of sentencing from judicial proceeding.253 Finally, concerns about the burden on law enforcement and the court system need to be weighed against the impact the criminal activity has on society, considering the negative effects of purchasing trademark counterfeit fashion items, the burden is worthwhile.254

C. Public Awareness of the Proposed Law

As individual states adopt the proposed uniform law, the public will need to be aware of the criminal penalty imposed on the knowing purchase of counterfeit fashion items.255 There are several ways in which the public can be made aware of this new law.256 First, the law can be included in travel guides, on travel websites, and posted at tourist information centers.257 Another way to inform the public is to use signage in areas such as Canal Street in New York City and Santee Alley in Los Angeles which are known for the sale and purchase of counterfeit items.258 Additionally, intellectual property organizations and fashion companies—which already run anti‐counterfeiting campaigns—can include the new law in their

251 See Silverman, supra note 40, at 219 (explaining that imputed knowledge based on

objective criteria is more cost‐effective). 252 See infra text accompanying notes 254‐55. 253 See Jacqueline Rose, Mandatory Sentencing, INTERNATIONAL DEBATE EDUCATION

ASSOCIATION (Jan. 10, 2011), http://www.idebate.org/debatabase/topic_details.php?

topicID=200 (discussing how mandatory sentencing frees “up a bottleneck in the judicial

system by removing the need for lengthy and costly pre‐sentencing reports, thus increasing

efficiency”). 254 See Fox, supra note 4 (noting the negative economic, criminal, health and safety impacts

of counterfeiting). 255 See Joseph E. Murphy, The Duty of the Government to Make the Law Known, 51 FORDHAM

L. REV. 255, 285 (1982) (arguing that promulgation, making the public aware of laws, is an

affirmative duty of the government). 256 See infra text accompanying notes 258‐61. 257 See GINGER ADAMS OTIS, PUERTO RICO 263 (3d ed. 2005) (providing the local road rules

in Puerto Rico); Myrtle Beach: State & Local Laws, TRIPADVISOR, http://www.tripadvisor.com

/Travel‐g54359‐c3585/MyrtleBeach:SouthCarolina:State.And.Local.Laws.html (last visited

Nov. 20, 2012) (providing tourists with laws unique to Myrtle Beach). 258 See No Smoking Signs, ALLSTATE SIGN, http://www.allstatesign.com/building/no‐

smoking (last visited Nov. 20, 2012) (explaining how posting signs helps enforce policies and

ensure people comply with state and federal laws).



campaigns.259 Finally, once purchasers of the illegal fashion goods start receiving the criminal fine, the existence of the law will likely spread virally as the topic of fashion blogs.260

CONCLUSION

Over the past three decades, counterfeiting has grown from a $5.5 billion annual industry to a $600 billion annual industry.261 This growth has occurred in the face of increased criminal penalties, tougher law enforcement, and strong anti‐counterfeiting campaigns. With no evidence that counterfeiters plan to slow down, it is time to hold individuals criminally liable for their role in the industry’s success and the harms it causes.

The goal of imposing criminal penalties against consumers is to deter them from making the purchases. By reducing consumer demand—which drives counterfeit activity—the manufacture and sale of counterfeit goods will be reduced. In turn, the revenue lost to counterfeiting will be returned to U.S. companies and the states, which will help restore jobs once lost to counterfeiters. Additionally, the need for child labor will be minimized and purchasers will no longer be facilitating organized crime. To win the war against the illegal counterfeiting world, it is time for the United States to declare that no act of bargain shopping or desire for a fashion status symbol is worth the harms that the purchases cause.

259 Harperʹs Bazaar, supra note 153; Public Awareness Campaign, supra note 153 (highlighting

the IACC’s anti‐counterfeiting campaign). 260 See Heather Fonseca, Knock‐off or Not?, THE STYLE CONFESSIONS (June 20, 2011),

http://thestyleconfessions.com/2011/06/20/knock‐off‐or‐not/ (questioning whether it should be

a crime to purchase counterfeit fashion items); Susan Scafidi, Toted Away, COUNTERFEIT CHIC

(July 15, 2011), http://www.counterfeitchic.com/ (blogging about the CFDA‐eBay collaboration

to fight counterfeiting). 261 Facts on Fakes, supra note 8, at 3 (noting that in 1982 counterfeiting cost the global

economy $5.5 billion and by 1996 costs increased to $200 billion); Bitton, supra note 14

(showing that the current global costs of counterfeiting are $600 billion annually).

Documents

Fitzgerald: The Fashion Police