THE EVOLVING THREAT AND ENFORCEMENT OF REPLICA GOODS

Of all the instances and schemes for infringing and counterfeiting trademark rights, perhaps none has been as successful and insidious as “replicas.” The term “replica,” when applied, for instance, to a watch or handbag, is synonymous with “counterfeit.” Both terms are used to describe a product that is an exact and unauthorized copy of an authentic product. While some street merchants may call their counterfeit products “replicas,” the designation exploded in popularity on the thousands of websites that boast look-alike counterfeit products. The popularity of “replica” goods is largely dependent on the absence of liability for manufacturers of these transient and low-cost goods, coupled with the public’s quest for a luxury image without the luxury good price. The prevalence of replica goods and the never-ending demand for them has created an unprecedented enforcement challenge for trademark owners. This Article discusses the issue of replicas and the difficulty in applying liability. It addresses the difficulty in convincing consumers that replica goods are harmful, absent some personal liability. United States Customs even permits those traveling to the United States to import one counterfeit good, such as a handbag or item of clothing, so long as it is intended for personal use. How can trademark owners persuade consumers that all counterfeiting is a crime, when certain circumstances allow—or in the case of replicas, at least appear to condone—counterfeit products? The Author concludes that trademark owners must be proactive and search for alternative ways to enforce their intellectual property rights, including holding third parties liable for infringement