United States v. Foote
United States Court of Appeals for the Tenth Circuit
413 F.3d 1240 (2005)
Jerome Foote (defendant) was convicted of trafficking in counterfeit goods in violation of the Trademark Counterfeiting Act based on his sale of a counterfeit Mont Blanc pen. The Trademark Counterfeiting Act criminalized trafficking in goods using a counterfeit mark that was likely to cause confusion. Foote had a business through which he sewed or glued counterfeit trademarks onto goods like pens, purses, and sunglasses and then sold those products to consumers. Foote initially sold products from his home and later set up a store called Replicas in a nearby strip mall. Foote appealed his conviction on several grounds, including on the court’s likelihood-of-confusion jury instruction, in which the trial court told the jury that Foote could be convicted if an average consumer would be deceived into believing that the counterfeit pen was made by the genuine trademark owner. Foote argued that this instruction allowed the jury to find him guilty even if none of his actual customers were likely to be confused, as long as some other member of the public might be confused. He argued that there was no confusion to his actual customers because he was very clear with them that his goods were replicas of trademarked items, not genuine articles.
Rule of Law
Holding and Reasoning (Murphy, J.)
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