Criminal prosecution fails – can’t prove the third party seller knew the mark was counterfeit
John H. Zacharia and Kari Kammel, 2020 - John H. Zacharia is former Assistant Deputy Chief for Litigation for the Computer Crime and Intellectual Property Section of the United States Department of Justice’s Criminal Division. Kari Kammel is the Assistant Director of Education and Outreach at the Center for AntiCounterfeiting and Product Protection at Michigan State University. “HOW CONGRESS PROPOSES TO PROTECT CONSUMERS FROM ONLINE COUNTERFEITS: The Good, the Bad, and the Ugly” September,
//DH
For its part, Amazon made a series of new announcements in its efforts to combat counterfeits sold on its platform. For instance, on January 13, 2020, and perhaps in anticipation of the DHS Report’s release less than two weeks later, Amazon announced though an anonymous source that, going forward, it “will report a merchant’s name, company name, product and contact information to authorities, after it confirms a business was selling fakes, closes the seller’s account, and the account holder does not make a successful appeal via Amazon’s typical processes.”78 This effort may produce an impressive number of referrals to law enforcement, but it may not be a good measure of its effectiveness for one simple reason: evidence of counterfeiting alone is not a federal crime. Federal law generally authorizes criminal prosecutions only against those who intentionally traffic in goods and knowingly use a counterfeit mark.79 Recent initiatives with the National Intellectual Property Rights Coordination Center, part of the U.S. Department of Homeland Security, have been coordinated to discuss data sharing with federal law enforcement.80 However, flooding law enforcement with information about thousands of third-party sellers without any evidence that the seller knew the mark was counterfeit will probably be an empty exercise that will lead to few new federal criminal trademark counterfeiting prosecutions.