A Look at Anti-Counterfeiting Initiatives
Written by: Kieu-Nhi Le
Consumers who walk down the streets of Chinatown in New York City are presented with an abundance of opportunities to purchase expensive items without spending as much, and in the process feel rich. As the customer steps into a secret room behind the storefront to purchase a $20 “Prado” wallet, there is an understanding from the customer that she is not likely purchasing a designer product. Although there are federal laws in place to prohibit the sale of counterfeit goods, such as the Trademark Counterfeiting Act of 1984, which punishes the producers by criminalizing the intentional use of a counterfeit trademark, some anti-counterfeiting advocates want to attack the issue more aggressively by punishing the consumers of the counterfeit goods.
The purposes of trademark law are to lower search costs and ensure that the company reaps the benefits of its work, thereby encouraging consistent quality and ultimately protecting the consumers. Trademark law distinguishes between point-of-sale confusion and post-sale confusion. Point-of-sale confusion occurs when a seller sells a product that infringes a trademark and the buyer is confused into thinking he/she is purchasing a product other than what he/she is actually getting. In contrast, post-sale confusion occurs when the consumer is aware that the product infringing a trademark is counterfeit but other people who see the product later would confuse it for an authentic product.
An increasing amount of counterfeit product distributors are conducting their businesses online because the Internet gives them “virtual anonymity.” If and when a certain website is discovered and shut down, a new website can be generated very quickly after that. Also, because the Internet is largely unregulated, these phony websites can easily deceive consumers by including the brand name or designer name in the website URL. Some consumers will be more educated or inquisitive than others and will know which websites are authentic or not. While the difference between point-of-sale confusion and post-sale confusion distinguishes whether the consumer is more or less blameworthy of knowingly purchasing counterfeit material, the emergence of websites claiming to sell authentic products blurs that distinction. However, if anti-counterfeit advocates succeed in pushing for the criminalization of purchasing counterfeit products, then the intent of purchasing counterfeit product will not matter, and the consumer will always be held strictly liable for his/her purchases.
Although a valid argument advocating for this stringent policy is, whether or not the consumer knowingly purchases counterfeit material, the money is still going towards that industry. It hardly seems fair to implement regulation like the aforementioned policy, when in comparison to the purchase of stolen property, a person must act knowingly and willfully in purchasing the product in order to be found guilty. Similar to stolen property, counterfeit products can be considered products with stolen trademarks. Therefore, if the purchase of counterfeit products were to be criminalized, the elements of the rule should mirror that of the purchase of stolen goods to include knowingly and willingly.
 Barbara Thau, Could a Fake Coach Purse Land You in Jail? Anti-Counterfeiters Target Consumers, Daily Finance, http://www.dailyfinance.com/2012/05/03/could-a-fake-coach-purse-land-you-in-jail-anti-counterfeiters-t/ (May 3, 2012, 12:00 PM).
 Zachary J. King, Note, Knock-Off My Mark, Get Set, Go to Jail? The Improprieties of Criminalizing Post-Sale Confusion, 88 N.Y.U. L. Rev. 2220, 2225-26 (2013).
 Id. at 2227.
 Id. at 2227-28.
 Kristina Montanaro, Associate Counsel and Director of Special Programs for the International Anti-Counterfeiting Coalition, Remarks at a Panel Discussion at Fordham Fashion Law Institute’s Symposium (Apr. 20, 2012).
 18 U.S.C. § 2315 (2013).