Trademark and Copyright Counterfeiting

Investigative responsibility for complaints of trademark counterfeiting rests with the Federal Bureau of Investigation. Cases involving importation of infringing articles may also be investigated by the United States Customs Service. Section 2320 is not intended to criminalize every trademark infringement for which remedies may exist under the Lanham Act, 15 U.S.C. §§ 1051 et seq. It is intended to deal vigorously with the burgeoning and increasingly lucrative trade in outright copies of well-known trademarked merchandise. The 1996 amendments are intended to focus prosecutive attention on the growing problems associated with the unlawful importation of counterfeit trademarked goods, and violations tied to organized criminal behavior and criminal enterprises.

All defenses, affirmative defenses, and limitations on remedies which would be applicable in an action under the Lanham Act for trademark infringement are applicable in a criminal prosecution for trademark counterfeiting under 18 U.S.C. § 2320.  These include fraud, abandonment, use to misrepresent source, fair use, innocent adoption, prior registration and use, and the so-called “antitrust” defense. 15 U.S.C. § 1115(b)(7). Also arguably relevant to a criminal prosecution are equitable defenses to an infringement action, such as laches or acquiescence.