U.S. v. Lam

The jury is granted broad discretion to discern whether allegedly infringed goods and marks are indistinguishable from the legitimate mark.

Opinion (Duncan): A jury convicted Chong Lam and Siu Yung Chan (“Lam”) of conspiracy to traffic counterfeit goods bearing the trademark of British fashioner designer, Burberry Ltd. (“Burberry”), a signature plaid pattern (“Check mark”) and an equestrian knight symbol (“Equestrian mark”). The alleged counterfeit symbol used by Lam was a combination of both the Check mark and the Equestrian mark. Lam appealed, arguing that the counterfeit trafficking statute, 18 U.S.C. § 2320 (“§ 2320”), was constitutionally overbroad, that the evidence was insufficient for the jury to convict Lam, and that comments made by the prosecutor created were improper. At trial, the prosecutors suggested that the jury’s analysis should be from the hypothetical viewpoint of a “reasonable consumer of ordinary intelligence.” Also, the jury submitted a question as to how the interpolation of the Equestrian mark over the Check mark figured into their analysis, which the district court answered that it depended on the jury’s finding of facts. The Court found that there was no plain error in the district court’s jury instructions; that § 2320 provided adequate notice to an ordinary person as to not be constitutionally vague; that whatever improper comments the prosecutor made were cured by the district court’s jury instructions; and that the court could not say that no rational jury member could conclude that Lam’s mark was a counterfeit. Judgment was AFFIRMED.