#counterfeitrhetoric — Public Fediverse posts

The final version of "The Counterfeit Sham" is now available here: https://harvardlawreview.org/print/vol-138/the-counterfeit-sham/ #LawProfs #LegalScholarship #CounterfeitRhetoric #Schedule A

You can read an older draft here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

#DesignPatents #CounterfeitRhetoric #LegalScholarship

Looking forward to presenting my forthcoming article, "The Counterfeit Sham" at #IPSC2024 today.

Draft available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

And I guess now is as good a time as any to share: I'm rebranding!

I'll be publishing this article as "Sarah Fackrell" (FACK-rull).

The best is yet to come.

#DesignPatents #CounterfeitRhetoric #LawFedi

Counterfeit rhetoric, utility patent personal jurisdiction edition:

https://patentlyo.com/patent/2024/07/jurisdiction-undermines-counterfeiting.html

(For more on why patent infringement is not the same as counterfeiting, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909)

#PatentFedi #CounterfeitRhetoric

More #ScheduleA #CounterfeitRhetoric, this time in a design patent case: https://www.scribd.com/document/735971958/Lovitedo-v-Schedule-A-Complaint

Following Judge Gottshall's decision on joinder, (https://mastodon.social/@design_law/112473882687049559) Vogt has filed an amended complaint in the Bailie case:

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.456489/gov.uscourts.ilnd.456489.33.0.pdf

The plaintiff alleges only copyright infringement, but makes liberal use of #CounterfeitRhetoric.

#ScheduleA #PermissiveJoinder

Another example of #CounterfeitRhetoric:

The second amended complaint alleges two causes of action (design patent infringement and copyright infringement) and is full of #CounterfeitRhetoric.

Note that this complaint alleges a single cause of action, for design patent infringement.

And yes, the complaint is full of #CounterfeitRhetoric.

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.458024/gov.uscourts.ilnd.458024.1.0.pdf

@meredithlowry This one might also be a good example for my new piece on #CounterfeitRhetoric. "But if it infringes, it must be a counterfeit, right?" Wrong.

Gaston Kroub, via Above the Law: "With the increased focus at the time on design patent issues ... the turning to Schedule A cases as an enforcement mechanism by the design patent plaintiffs bar is understandable. What is less palatable, however, is the co-opting of anti-counterfeiting rhetoric by that same bar — as well as by some jurists — in the design patent context." https://abovethelaw.com/2024/04/off-schedule-by-design/ #DesignPatents #ScheduleA #CounterfeitRhetoric

Judge Bucklo also relies expressly on case law about counterfeiting. But this is a copyright case, not a trademark case. So there is, by definition, no actual counterfeiting at issue. #CounterfeitRhetoric

And there's #CounterfeitRhetoric here, too. (As far as I can tell from the public screen shots, neither accused listing uses the asserted FUN FINS mark.)

Excited to share that my newest article, "The Counterfeit Sham," will be published in Volume 138 of the Harvard Law Review.

You can read the current draft here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

#LawFedi #LegalScholarship #CounterfeitRhetoric

Delighted to be able to share a new version of my article on #CounterfeitRhetoric, now with 100% more Zorro content:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

Comments welcome!

#LegalScholarship #LawFedi #LawProfs #PatentFedi #CounterfeitSham #ScheduleA #DesignPatents

Note the use of #CounterfeitRhetoric here (the complaint does not accuse any defendant of trademark infringement, let alone counterfeiting):

And here we go with the #CounterfeitRhetoric. Note that there is no claim for counterfeiting here, no claim for trademark infringement, no mention of any trademark (or trade dress) rights at all.

But, given what we know about the #CounterfeitRhetoric that's used in a lot of #ScheduleA cases, and how for at least one judge, "counterfeiting" is the rationale for letting plaintiffs use this litigation model, it still makes sense for Webelar to put this all out there.

(Side note: This is a good example of how #CounterfeitRhetoric has affected judges in these cases. While this particular case does involve claims of actual counterfeiting, not all of the cases he's referring to do. And Judge Durkin calls all #ScheduleA cases "counterfeit product cases" on his website https://www.ilnd.uscourts.gov/judge-info.aspx?HztO2ip/uh7HVAKHYpZ4iA==)

For the record:

- Not all trademark use is "counterfeiting"

- Copyright infringement isn't "counterfeiting"

- Utility patent infringement isn't "counterfeiting"

- Design patent infringement isn't "counterfeiting"

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

#CounterfeitRhetoric

Well, this one is going in the new #CounterfeitRhetoric draft for sure:

https://edisonlf.com/#faq

This complaint caught my eye when it was filed because it is a copyright and design patent case that is full of #CounterfeitRhetoric:

https://www.scribd.com/document/681976056/Gulan-Liao-v-Schedule-A-Complaint

Another day, another Rubio design patent complaint in SDFL with no pictures, no patent number & lots of counterfeit rhetoric:

https://www.scribd.com/document/681525160/XYZ-v-Schedule-A-1-23-cv-24163

#ScheduleA #CounterfeitRhetoric #DesignPatents

Anyway, if you're interested in these issues, see this work-in-progress on #CounterfeitRhetoric

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909

INTA brings the #CounterfeitRhetoric in its #LKQvGM amicus brief:

GBC: This case "involves the use of counterfeit marks"

Also GBC: Does not allege that any registered mark is at issue.

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.446634/gov.uscourts.ilnd.446634.1.0.pdf

#CounterfeitRhetoric

Liforme alleges that "Defendants’ activities constitute willful patent infringement and counterfeiting under 35 U.S.C. § 271."

Section 271 doesn't mention counterfeiting. There is no such thing as "counterfeiting under 35 U.S.C. § 271."

https://www.law.cornell.edu/uscode/text/35/271

#CounterfeitRhetoric

Liforme files a #ScheduleA complaint alleging copyright & design patent, fills it with #CounterfeitRhetoric:

https://www.scribd.com/document/676637719/Liforme-v-Schedule-A-Complaint

The "exemplary" design patent infringement claims are....not compelling.

#Copyright #DesignPatents #Liforme

Note: This is a reason why #CounterfeitRhetoric matters. If you frame this as a fight about evil "counterfeiters," it looks different than saying it's a fight against "competitors."

Remember, one big goal of #CounterfeitRhetoric is to convince lawmakers that taxpayers should pay to enforce private (IP) rights:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4549909