The NAM joined with the Washington Legal Foundation in an amicus brief 6/1/07 supporting Supreme Court review of an adverse decision by the 10th Circuit in a counterfeit product case. The 10th Circuit refused to follow numerous other judicial decisions holding that trademark infringement is itself sufficient to show irreparable harm. The manufacturer, Lorillard, sought an injunction against a store that was selling counterfeit goods (Newport cigarettes), and one of the requirements to obtain an injunction is to show that irreparable harm would occur without one.
Our amicus brief argues that counterfeiting is a high-profit activity that poses a serious risk to public health and safety, and has attracted considerable interest from organized crime and terrorist organizations. In many cases the only means to control counterfeiting is to target those who engage in retail sales of counterfeit goods to the public. Products that bear a fake trademark unquestionably cause irreparable harm to the trademark owner. If an injunction against further sales is not available in a case like this, it is hard to imagine when an injunction could ever be obtained against a retailer shown to have sold a small quantity of counterfeit goods.
On 6/25/07, the Court declined to hear this appeal. The lower court's ruling will make it harder for the federal government to convince foreign governments to protect intellectual property rights abroad. It we are unable to provide an effective system of injunctions and penalties for violations on our own soil, it will be difficult to convince others to do so on theirs.