Mark McKenna: Trademark Counterfeiting And Creep

One of my favorite events at Akron Law this past school year was hearing Professor Mark McKenna deliver the Oldham Lecture on his fascinating paper, Criminal Trademark Enforcement And The Problem Of Inevitable Creep.  The completed article, forthcoming in the Akron Law Review, is now available on SSRN. The story, in Mckenna's telling, is simple. There is a criminal remedy for trademark "counterfeiting" because, most people would agree, using an identical trademark for goods or services that are identical to the trademark owner's is an economically and morally worse act than ordinary trademark infringement. A modern-day example of this atrocious crime is the company that has been hawking dysfunctional "Philips Sonicare" toothbrush replacement heads on Amazon.com. Consumers buy them thinking they are the real thing, and are sorely disappointed when the brush heads do not work. But to deserve the classification…

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