A Michigan county’s proposed logo for GET PUMPED for its municipal waste services, received a preliminary refusal from the Trademark Office and the local paper second guesses the trademark attorney. I’m not sure what the ‘all jurisdictional’ search was that cost $1500. Full U.S. searches are running about $500 from the big 3 vendors, plus whatever the firm charges to evaluate the search. It’s interesting that a municipality needs a federal trademark for its services in the first place. As for the $1000 or so for the filing of the application – the Government charges $325 for a one class application (depending on how you file) suggesting $675 for filing the application plus expenses which is not out of line for big city set fees.
Google Print is in beta, play around with it here. I already found something useful for a client’s fame file.
I found the argumentation in this Reuters piece on Creative Commons to be McCarthyesque (after McCarthy the red baiter, not the treatise author). Professor Lessig knows how to speak up for himself, but I still find the shamelessness of the tactics to be depressing.
Further to yesterday’s mention, here is the link to NPR’s story examining whether sales of counterfeit products are used to finance terrorism. With due respect to Prof Lemley, if the government has not made its case that there is such a link, that’s one thing, but the assertion that selling counterfeits is not the sort of thing that ‘anti-capitalist’ terrorists would do, is not a very compelling argument.
American Needle Inc. v. New Orleans Louisiana Saints et al., No. 04 C 7806, 2005 WL 1126537 (N.D. Ill., E. Div. May 5, 2005):
Plaintiff held a non-exlusive license from the NFL to create apparel and headwear with NFL team logos. The NFL didn’t renew and granted Reebok and exclusive license. Plaintiff sued on antitrust grounds arguing that the NFL was attempting to monopolize the market in NFL-logo merchandise.
The defendants had argued trademarks only indicate the source or sponsorship of goods or services and say nothing about which other products consumers might see as substitutes.
While that is usually true, the judge said, here the NFL team logos can be viewed as the actual product. While some people might buy a T-shirt or hat with a logo just because they need a T-shirt or hat, most people who buy logo-bearing merchandise are fans who would not see other kinds of apparel as a reasonable substitute, the judge said.
The NFL’s motion to dismiss was denied for 4 of the 5 counts and the case continues.
The Copyright Office is offerring RSS news feeds (the first line of the COpyirght Office’s page answers the question: ‘what is a RSS news feed).
This bill, HR 32, passed May 23. It prohibits trafficking in labels, tags and various types of packaging, bearing counterfeit marks.
H. R. 32
To amend title 18, United States Code, to provide criminal penalties for trafficking in counterfeit marks.
HR 32 EH
H. R. 32
- Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; FINDINGS.
- (a) Short Title- This Act may be cited as the `Stop Counterfeiting in Manufactured Goods Act’.
- (b) Findings- The Congress finds that–
- (1) the United States economy is losing millions of dollars in tax revenue and tens of thousands of jobs because of the manufacture, distribution, and sale of counterfeit goods;
- (2) the Bureau of Customs and Border Protection estimates that counterfeiting costs the United States $200 billion annually;
- (3) counterfeit automobile parts, including brake pads, cost the auto industry alone billions of dollars in lost sales each year;
- (4) counterfeit products have invaded numerous industries, including those producing auto parts, electrical appliances, medicines, tools, toys, office equipment, clothing, and many other products;
- (5) ties have been established between counterfeiting and terrorist organizations that use the sale of counterfeit goods to raise and launder money;
- (6) ongoing counterfeiting of manufactured goods poses a widespread threat to public health and safety; and
- (7) strong domestic criminal remedies against counterfeiting will permit the United States to seek stronger anticounterfeiting provisions in bilateral and international agreements with trading partners.
SEC. 2. TRAFFICKING IN COUNTERFEIT MARKS.
- Section 2320 of title 18, United States Code, is amended as follows:
- (1) Subsection (a) is amended by inserting after `such goods or services’ the following: `, or intentionally traffics or attempts to traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive,’.
- (2) Subsection (b) is amended to read as follows:
- `(b)(1) The following property shall be subject to forfeiture to the United States and no property right shall exist in such property:
- `(A) Any article bearing or consisting of a counterfeit mark used in committing a violation of subsection (a).
- `(B) Any property used, in any manner or part, to commit or to facilitate the commission of a violation of subsection (a).
- `(2) The provisions of chapter 46 of this title relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. At the conclusion of the forfeiture proceedings, the court, unless otherwise requested by an agency of the United States, shall order that any forfeited article bearing or consisting of a counterfeit mark be destroyed or otherwise disposed of according to law.
- `(3)(A) The court, in imposing sentence on a person convicted of an offense under this section, shall order, in addition to any other sentence imposed, that the person forfeit to the United States–
- `(i) any property constituting or derived from any proceeds the person obtained, directly or indirectly, as the result of the offense;
- `(ii) any of the person’s property used, or intended to be used, in any manner or part, to commit, facilitate, aid, or abet the commission of the offense; and
- `(iii) any article that bears or consists of a counterfeit mark used in committing the offense.
- `(B) The forfeiture of property under subparagraph (A), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section. Notwithstanding section 413(h) of that Act, at the conclusion of the forfeiture proceedings, the court shall order that any forfeited article or component of an article bearing or consisting of a counterfeit mark be destroyed.
- `(4) When a person is convicted of an offense under this section, the court, pursuant to sections 3556, 3663A, and 3664, shall order the person to pay restitution to the owner of the mark and any other victim of the offense as an offense against property referred to in section 3663A(c)(1)(A)(ii).
- `(5) The term `victim’, as used in paragraph (4), has the meaning given that term in section 3663A(a)(2).’.
- (3) Subsection (e)(1) is amended–
- (A) by striking subparagraph (A) and inserting the following:
- `(A) a spurious mark–
- `(i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
- `(ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
- `(iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and
- `(iv) the use of which is likely to cause confusion, to cause mistake, or to deceive; or’; and
- (B) by amending the matter following subparagraph (B) to read as follows:
- `but such term does not include any mark or designation used in connection with goods or services, or a mark or designation applied to labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature used in connection with such goods or services, of which the manufacturer or producer was, at the time of the manufacture or production in question, authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation.’.
- (4) Section 2320 is further amended–
- (A) by redesignating subsection (f) as subsection (g); and
- (B) by inserting after subsection (e) the following:
- `(f) Nothing in this section shall entitle the United States to bring a criminal cause of action under this section for the repackaging of genuine goods or services not intended to deceive or confuse.’.
SEC. 3. SENTENCING GUIDELINES.
- (a) Review and Amendment- Not later than 180 days after the date of enactment of this Act, the United States Sentencing Commission, pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of any offense under–
- (1) section 1204 of title 17, United States Code; or
- (2) section 2318 or 2320 of title 18, United States Code.
- (b) Authorization- The United States Sentencing Commission may amend the Federal sentencing guidelines in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note) as though the authority under that section had not expired.
- (c) Responsibilities of United States Sentencing Commission- In carrying out this section, the United States Sentencing Commission shall determine whether the definition of `infringement amount’ set forth in application note 2 of section 2B5.3 of the Federal sentencing guidelines is adequate to address situations in which the defendant has been convicted of one of the offenses listed in subsection (a) and the item in which the defendant trafficked was not an infringing item but rather was intended to facilitate infringement, such as an anti-circumvention device, or the item in which the defendant trafficked was infringing and also was intended to facilitate infringement in another good or service, such as a counterfeit label, documentation, or packaging, taking into account cases such as U.S. v. SF.3d 194 (7th Cir. 1996).
Passed the House of Representatives May 23, 2005.
“They Sell No Fake Before Its Time” – NY Times article on street vendors, specifically those that sell fake goods. Interesting points:
- people insist on beleiving that the goods ‘fell off the back of the truck’ and therefore are real (which, the article asserts, is seldom the case);
-some purchasers have no clue as to which luxury brand is the target of the knock-off they’re buying ;
-some bags are sold labeless, and the purchaser pays extra to have a label glued on.
There was a discussion on NPR today of the Government’s contention that terrorists use the sale of counterfeit goods to fund their operations. Prof. Lemley was quoted, doubting the contention. I do not see a link yet on NPR’s site. Will provide the link when there is on.