Terror Has a (Fake Brand) Name
Kerry Howley discovers that protecting the trademarks of fashion-industry conglomerates fights terrorism.
Now, I’ll grant that fraud is bad and should be a crime. Someone who sells you a fake Rolex that they represent as a real Rolex is defrauding you. Also, you’re a moron. Someone who sells you fake baby formula or fake medicine is defrauding you and putting you at real risk of physical harm. The latter strike me as entirely reasonable priorities for law enforcement.
Where I care not at all is when you buy a fake Rolex for the sheer irony of it all. I care a teensy-weensy bit if you buy a fake Rolex so that you can try to fool people into thinking you’re wearing a real one. I’ll pity you a little, and, yes, scorn you. And I’ll laugh when you get caught out and look like a douchebag. But I won’t willingly spend taxpayer money siccing the cops on you. Similarly, if Rolex or Oakley or Gucci want to sue you for putting their labels on your knockoff, more power to them. You’re misrepresenting your product. But again, let them do it on their own dime, not the public’s. There’s a harm difference in putting “Bayer” on a bottle of pretend aspirin and putting YSL on a real sweater. Cops for the former; torts for the latter. Worst and most despicable of all, though, is when they try to come after your company for imitating the “lines” of their new dress or the shape of their ear-piece. That’s taking IP law to absurd extremes.
Comment by Jennifer —
December 5, 2007 @ 9:20 pm
I may or may not have once owned a tasteful gold Rolex (with big sparkly diamonds encircling its face) which I bought at a DC street vendor’s cart for $10 back in 1993. It actually kept very good time, but its second hand lacked that distinctive Rolex “sweep” motion.
Comment by Fraud Guy —
December 5, 2007 @ 9:24 pm
Having worked IP enforcement for a period of time, I felt I should try to come up with a witty retort to your conclusion, but I find myself constitutionally incapable of arguing with the truth.
Comment by Thoreau —
December 5, 2007 @ 10:10 pm
I actually hope that terrorists start selling fake Rolexes. They always get people for something other than the original crime. They got Capone for tax evasion rather than all the murders that he ordered. Maybe they could get Osama for trademark infringement rather than, you know, 9/11.
Comment by mds —
December 6, 2007 @ 10:39 am
Why not do both? Have the Republican Party, which has registered 9/11 as its trademark, sic the IP Police on bin Laden.
Heck, the RIAA uses a higher standard of proof than the DoJ right now, so maybe we can leak some indication that OBL is distributing pirated tunes via Bittorrent (which is, of course, redundant), and have him brought to legitimate justice that way.
Comment by James Joyner —
December 6, 2007 @ 2:16 pm
Are you opposed to the state going after thieves, period, or just particular ones?
Those selling counterfeit goods are simultaneously expropriating the hard-earned reputation of others, taking money out of their pockets directly, and damaging that reputation by flooding the market with inferior goods bearing their label. That doesn’t concern you?
For that matter, I’m not sure why someone who had their sweater stolen in a non-violent crime is any more harmed than YSL is for having theirs counterfeited.
Comment by David Woycechowsky —
December 6, 2007 @ 3:05 pm
Worst and most despicable of all, though, is when they try to come after your company for imitating the “lines†of their new dress or the shape of their ear-piece. That’s taking IP law to absurd extremes.
Links?
I agree that the dress (hypothetical?) is absurd.
The earpiece (hypothetical?) maybe not so much. If you make earpieces and don’t want to get sued then shape them like they shaped them back in ‘75 or ‘85. What? Don’t like those shapes? Then pay up! (in defense or tribute and the choice is yrs)
Comment by Jim Henley —
December 6, 2007 @ 4:05 pm
James, really? That last sentence especially is hard to credit. If you steal my YSL sweater, I have no sweater. If you put a YSL label on your own sweater, YSL has suffered no comparably tangible loss. There’s no thing they possessed that they no longer can lay hands on. Depending on circumstances, they may have incurred some level of harm. If the harm rises to the level of fraud, then it’s certainly a crime. If the bootlegger, for instance, genuinely convinces people that a sweater of inferior workmansihp is YSL, then it damages YSL’s reputation for quality. At the very least that give YSL a tort claim. It is probably criminal fraud on the customer. I can think of a possible case in which it would tortiously harm certain retail channels.
Now in the apparently very common informed buyer-informed seller scenario, you’re into a situation that’s pretty comparable to filesharing in terms of debatable harm. Illegal downloads of a million copies of a Beyonce single don’t represent a million units in “lost sales.” Some sizable percentage of those downloaders were never going to pay money for a copy. Absent a free alternative, they’d have done without. Similarly, if a fake Rolex is $20 and the real one is $7K, it’s pretty obvious that very few people buying the fake represent “lost sales” to Rolex.
Stray thought that just occurred to me: I wouldn’t be surprised if many “counterfeits” aren’t actually the genuine article. Consumer-good manufacturing capital of the world? China and Indochina. Counterfeit-goods capital of the world? China and Indochina. Consider: The Go Cola you get at Safeway comes right out of a Coke plant; they just switch the labels from, say, 2-3pm, per their contract with Safeway. Now imagine I get ahold of a bunch of bottles of Go Cola and slap Coke labels on them. I now have counterfeit coke! That is, also, real coke. Now I turn into a textile mill in Guangzhou. I have a contract to deliver 500,000 sweaters to YSL by 5. I do so. Now I keep my folks cranking out sweaters until 9pm, only instead of shipping them to YSL, I put them on a truck for Mr. Ho downtown, who pays me enough to make it worth my while. Alternatively, I slip Mr. Ho several cartons of YSL logos and he gets a much cheaper mill in Cambodia to slap them on some sweaters.
A crime? Probably, depending on Chinese law. A contract violation? Oh for darn sure. A threat meriting a sizable commitment of finite law-enforcement resources in this country? By no means.
Which brings us to your first question, to which I say, prosecutorial discretion exists for a reason, and there’s only so much money and shift-hours to be devoted to law enforcement.
Comment by calling all toasters —
December 6, 2007 @ 11:32 pm
Rolexes are for gigolos. Get a fake Patek Philippe or a fake Franck Muller for real fake class.
Comment by Jim Mirkalami —
February 8, 2008 @ 5:28 pm
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Thanks,
Jim Mirkalami