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Intellectual Property Litigation Trademarks

Counterfeiting vs. Infringement: Second Circuit Weighs In

In two recent cases, the Second Circuit provided guidance as to the circumstances that may give rise to liability for counterfeiting, as distinct from mere infringement, and addressed liability for contributory infringement for counterfeiting.

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The Lanham Act protects trademarks by providing mark holders with remedies for the unauthorized use of registered marks and by providing heightened statutory penalties in cases involving counterfeit marks. Recently, in Tiffany and Co. v. Costco Wholesale, 971 F.3d 74 (2d Cir. 2020), the U.S. Court of Appeals for the Second Circuit provided guidance as to the circumstances that may give rise to liability for counterfeiting, as distinct from mere infringement. And in Omega SA v. 375 Canal, 984 F.3d 244 (2d Cir. 2021), the Second Circuit addressed liability for contributory infringement for counterfeiting.

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