Law professor and blogger Susan Scafidi gives us the legal issues behind buying or selling counterfeit goods.

As a law professor with a passion for fashion, I’ve spent a lot of time thinking about the counterfeit question.  Love ‘em or hate ‘em, here’s the scoop on what’s legal—or not:

Q.  Is manufacturing or selling a handbag with a fake Louis Vuitton or Prada label illegal?


A.  Yes.  You already knew that one. In fact, a law passed by Congress last month allows law enforcement to seize not only counterfeit items but also other things used to facilitate trafficking—like computers or automobiles.  So think twice before driving downtown to pick up a load of fakes and then printing invitations to a neighborhood purse party.

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Q.  Is it still illegal if the buyer knows it’s fake, and the seller admits it and disclaims any association with the designer?


A.  Yes.  There’s still a chance of “consumer confusion” (the test for trademark infringement) among other people who see the bag or upon resale.


Q.  What if the bag doesn’t have a logo but otherwise looks just like an Hermes Birkin?


A.  That’s a bit more complicated, but for an iconic design, a court might find the bag illegal under a theory of “trade dress” protection.  The closer the copy is to a recognizable, famous original, the more likely it is to be illegal.


Q.  If selling counterfeits is illegal, why is it so easy to find them online or on the street?  In New York, you can even buy unauthorized NYPD t-shirts and hats!


A.  Law enforcement is expensive—and there’s an eager market.  For some manufacturers, the potential for huge profits makes the risks worthwhile. 


Q.  So much for handbags—what about Oscar gowns and other clothing?


A.  In the U.S., knocking off clothing (without using a fake label or logo) is legal, although creative types have been trying to change that for at least a century.  On March 30, a new bill that would give designers protection against line-for-line copyists was introduced in Congress.  It’s supported by designers like Zac Posen and Diane von Furstenberg—and if it passes, it will give a whole new meaning to articles like Marie Claire’s regular “Splurge or Steal?” feature.


Q.  But this is fashion—everybody copies everybody else!  How else would we know that wedge espadrilles and lace are “in” for spring?


A.  The new law would apply only to literal copies, not trends or inspiration.  But it could bring about some changes—just over a decade ago, YSL sued Ralph Lauren for copying an evening gown under a similar law in France, and won.


Q.  Can I get arrested or fined for just buying a fake?


Not in the U.S.—but in the past year, both France and Italy have passed laws targeting consumers of counterfeit merchandise.  Also, if you go on vacation outside the U.S. and try to bring back an illegal fake, both you and the merchandise could be stopped at customs.  But hey, at least you’ll have a great tan in your mug shot.


The bottom line, from a legal perspective anyway, is that selling and even buying fakes can be risky—but the choice is up to you.  Will it be a cheap designer knockoff or an original at an affordable price point?  Class dismissed—it’s time to shop!


Susan Scafidi writes the blog Counterfeit Chic