Legal Question in Intellectual Property in New York
Genuine Fakes
I am a licensed Street Vendor in NYC. I sell jewelry, purses, sunglasses and other accessories including the ''designer look-a'likes, genuine knockoffs and real fakes''.
Some mercandise looks like the designer brand with an unknown label or designer; i.e., items with plaid print (commonly called Burbury) on sunglasses, scarves and hats. I no longer carry any Burbury print look-a-likes as a police officer has threatened to arrest me for trademark infringement and selling counterfeit mercandise. Is he right, is the print protected?
1 Answer from Attorneys
Re: Genuine Fakes
Your question involves one of the hottest problems in Trademark law in NYC at this time. The basic premise of the trademark laws is to protect consumers from being defrauded by sellers of �counterfeit� merchandise and to prevent the �watering down�of a trademark's value. The US Supreme Court held last year that there have to be �actual damages� for a plaintiff to bring a damage action in infringement. If your products are clearly marked as �knock offs� and thus consumers can not be misled at the point of sale, there really is no basis for the assertion that you are engaged in an illegal activity.
You have to balance �being right� however, with the cost of proving that you are right.
As I have urged some of my Chinatown clients, merchants in your industry should band together and take on a test case to eliminate the problem; no one person can afford to take on the battle alone.
Good luck.
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