When Consumers Already Know or the Pros Can’t Tell: Quinn Emanuel’s Tom Nolan on the Fast-Changing Counterfeiting Landscape
Quinn Emanuel attorney Tom Nolan’s brief, must-read guide to trends in IP counterfeiting, published on Reuters, bears a lively headline on “Confusion About Confusion.”
Fortunately, Nolan’s crisp survey of the intellectual property landscape of casual knockoffs and meticulous replicas is anything but confusing.
In his reader-friendly, case-studded piece, Nolan examines and illuminates the latest trends in the field. He identifies the fresh legal challenges that are driving brands to fight back in new ways and pushing courts to break new ground in adjudicating the disputes between household brands and national retailers.
Tom, Of Counsel in Quinn Emanuel’s Los Angeles office, focuses on complex, high-stakes litigation and is a subject matter expert in anti-piracy, counterfeiting, and copyright litigation. In his Reuters analysis he offers up a batch of instructive recent lawsuits to illustrate how theories of consumer confusion are changing.
Among the takeaways:
- Generic brands and private-label products are showing up more often on the shelves, and may not ape the word or design marks outright but instead simulate the packaging or design of well-known brands. A savvy consumer may not be confused at all, but rather might be only too happy to buy the “dupe” precisely because it is similar but cheaper. That complicates the litigation.
- Some brands going to court have turned to other theories, including trade dress, design patents, and false advertising. Each presents its own challenges.
- “Superfakes,” intended as exact duplicates with quality approximating that of the originals, offer yet another variant of consumer confusion, displacing the risk from the counterfeit seller to the platform that vouches for the wares.
- Counterfeiting has also pushed beyond consumer goods and into pharmaceuticals – often outright criminal activity with the highest safety risks.