The Crime of Product Counterfeiting: A Legal Analysis of the Usage of State-Level Statutes

This legal analysis of the state-level trademark counterfeiting criminal enforcement framework in the United States (“U.S.”) scrutinizes the use and non-use of state statutes to prosecute and convict trademark counterfeiters. Relying on state-level appellate court cases and conviction data, we found: (1) states inconsistently use and interpret criminal anti-counterfeiting statutes across the U.S.; and (2) strategies for building evidence in trademark counterfeiting criminal cases are strongest when based on cooperation with the victim (trademark owner). Based on our findings, to improve state-level anti-counterfeiting efforts, we recommend several best practices: Adoption of specific criminal trademark counterfeiting statutes if states do not already have a statute; Continued involvement and testimony by brand owners to distinguish between counterfeit and genuine product; and Continued and expanded collaboration and educational efforts between law enforcement, prosecutors, private investigators, and brand owners regarding trademark counterfeiting, as well as the potential danger to the health and safety of the public and possible connections to organized crime and terrorism