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1701

Trademark Counterfeiting—Introduction

The Trademark Counterfeiting Act of 1984, Pub. L. No. 98-473, Tit. II, § 1502(a), 98 Stat. 2178 (1984), and the Anticounterfeiting Consumer Protection Act of 1996, Pub.L. No. 104-153, 110 Stat. 1386 (1996), address the growing problem of trafficking in counterfeit trademark goods, which has primarily involved the clandestine manufacture and distribution of imitations of well-known trademarked merchandise. The 1984 Act created an offense, codified at 18 U.S.C. § 2320, 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. 18 U.S.C. § 2320(a). Section 2320(b) enables the United States 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, 15 U.S.C. § 1501 et seq., 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. 15 U.S.C. § 1117. 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. Id. §  1116(d). 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. Id. § 1116(d)(9). The Lanham Act also requires applicants to file a notice of application for an ex parte seizure order with the United States Attorney, who may participate in such proceedings if they appear to affect evidence of a federal crime. See this Manual at 1719.

NOTE: The Anticounterfeiting Consumer Protection Act of 1996 requires that the Attorney General report to Congress on investigative and prosecutive activities that occur in relation to the criminal intellectual property statutes, including 18 U.S.C. § 2320. See USAM 9-68.150 and this Manual at 1703.

[cited in USAM 9-68.100]