Counterfeit trademark test applies to deception of public in general, not just direct purchasers of counterfeit goods

STATUTORY CONSTRUCTION/SENTENCING United States v. Foote, No. 03-3263, ___ F.3d ___ (10th Cir. Jul. 6, 2005)(Kansas). Appeal of conviction and sentence for conspiracy to traffic in counterfeit goods in violation of 18 U.S.C. § 2320 and 371. HELD: (1) Statute defining counterfeit trademark as mark likely “to cause confusion, to cause mistake, or to deceive,” is not restricted to instances in which direct purchasers are confused or deceived by counterfeit goods, but also applies to members of public in general who might be confused, mistaken, or deceived should they encounter the counterfeit goods in post-sale context. (2) Federal catchall statute of limitations period of five years applies to prosecutions under Counterfeit Trademark Act, not limitations period provided under any analogous state law statute. (3) Where district court dismissed all substantive trafficking counts other than one count involving single counterfeit Mont Blanc pen, and all conduct comprising that offense occurred before effective date of 2000 sentencing guidelines which provided harsher penalties, district court erroneously applied 2000 guidelines based on conspiracy-related conduct contained in dismissed counts that occurred after 2000 guidelines became effective. Read the opinion here.