Counterfeit lawyer – Palming Off Definition Law Meaning
[Common Law Unfair Competition]
Can you go to jail for buying counterfeit items?
You can go to jail for selling counterfeit and fake designer brands such as Prada, Adidas, Nike, Viagra, Tiffany, Louis Vuitton. There are California and federal laws that prohibits possessing, selling, or manufacturing counterfeit goods. Nakase Wade counterfeit lawyer represent businesses and companies in protecting their brands from counterfeits. Likewise, if a business is falsely accused of selling counterfeit goods, our counterfeit defense attorney can help.
Is selling counterfeit goods illegal in California?
Under California Penal Code 350 PC, it is illegal to prohibits possessing, selling, or manufacturing counterfeit goods with a registered trademark. For lawyers preparing a lawsuit, Palming Off is the common law cause of cause of action for counterfeiting goods. Palming off law discussed below.
What is the definition of Palming Off?
“Palming off” is a form of unfair competition; specifically, palming off means the simulation and imitation of the goods of a rival or competitor with the purpose of deceiving the unwary public into buying the imitation under the impression that it is purchasing the goods of such competitor. (American Philatelic Society v. Claibourne (1935) 3 Cal.2d 689; Lutz v. De Laurentiis (1989) 211 Cal.App.3d 1317, 1323, quoting Curtis v. 20th Century-Fox Film Corp. (1956) 140 Cal.App.2d 461, 469.)
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Element 1: Simulation and Imitation of Goods
Palming off involves the simulation and imitation of a rival’s goods. (American Philatelic Society v. Claibourne (1935) 3 Cal.2d 689.)
A movie entitled You’re in the Navy Now did not simulate or imitate a book entitled Hey, Mac! You’re in the Navy Now where there were eleven other previous books and one previous movie with “You’re in the Navy Now” in the title. (Curtis v. 20th Century-Fox Film Corp. (1956) 140 Cal.App.2d 461, 469 [“mere use of a substantially similar title, if not used in such manner as to induce the public to believe that the work to which it is applied is the identical thing which it originally designated, does not constitute unfair competition”].)
A complaint stated a cause of action for unfair competition where it alleged that the defendant purchased unperforated sheets of stamps, then perforated them so as to replicate rare sheets of imperfectly-perforated stamps, so that dealers could palm off defendant’s sheets as the rare, imperfect sheets. (American Philatelic Society v. Claibourne (1935) 3 Cal.2d 689.)
The addition of a label by itself to disclaim connection to a competitor does not negate “palming off” or confusion of the public as to the source of the goods. (Capitol Records, Inc. v. Erickson (1969) 2 Cal.App.3d 526, 537.)
Element 2: Intent to Deceive
The defendant must have acted with the purpose of deceiving the unwary public into buying the imitation under the impression that it is purchasing the goods of a competitor. (American Philatelic Society v. Claibourne (1935) 3 Cal.2d 689.)
Plaintiffs properly pled unfair competition where the complaint alleged that defendants intentionally and deceptively titled and advertised two movies to mislead movie-goers into believing that the movies were sequels to The Amityville Horror. (Lutz v. De Laurentiis (1989) 211 Cal.App.3d 1317, 1323.)
A reading improvement company’s use of a telephone number that was deceptively similar to the number of another company providing the same type of service, could provide the basis for a claim of unfair competition, where both telephone numbers included the word “READ.” (Cytanovich Reading Ctr. v. Reading Game (1984) 162 Cal.App.3d 107, 114.)
Element 3: Competition
To maintain a claim for common law unfair competition, plaintiff need not show palming off, but plaintiff must show competition between the parties. (Trovan, Ltd. v. Pfizer, Inc., 2000 U.S.Dist.LEXIS 7522, *18 (C.D.Cal. 2000); see also Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.)
Remedies
Compensatory Damages
Common law tort of unfair competition requires a showing of competitive injury, whereas statutory unfair competition includes acts that harm the public as well as acts that harm competitors only; damages are available for common law unfair competition, but not for statutory unfair competition. (See, e.g., Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265; Tomlin v. Walt Disney Productions (1971) 18 Cal.App.3d 226, 235-36.)
Punitive Damages
California common law unfair competition claims may justify an award of punitive damages if the defendant has acted in conscious disregard of the plaintiff’s rights. (Trovan, Ltd. v. Pfizer, Inc., 2000 U.S.Dist.LEXIS 7522, *94 (C.D.Cal. 2000).)
Statute of Limitations
The two-year statute of limitations for misappropriation or conversion of tangible interests probably applies. (Cal. Civ. Proc. Code, § 339(1).) However, note that the statute of limitations for statutory unfair competition is four years. (Cal. Bus. & Prof. Code, § 17208.)
Affirmative Defenses
Statute of Limitations (see above).
- Laches.
- Estoppel.
- License.