Counterfeiting Under Section 2318
Counterfeit and Illicit Labels Under Section 2318
Much like the Copyright Act, 18 U.S.C. § 2318 is a criminal statute designed to protect creative works. It prohibits knowingly trafficking in counterfeit or illicit labels, or counterfeit documentation and packaging for protected classes of copyrighted works. Section 2318 is not, however, a pure copyright statute—it provides protections that vary from those under the Copyright Act and the Trademark Counterfeiting Act.
Section 2318 differs from civil and criminal trademark law. Indeed, section 2318 does not address the use of counterfeit trademarks themselves. Moreover, § 2318 penalizes only the trafficking of labels and labeling components bearing counterfeit trademarks in connection with certain copyrighted works.
The Elements of a Section 2318 Claim
In order to establish a criminal offense under § 2318, the government must prove the following elements:
- The violator knowingly trafficked in labels, packaging, documentation, or copies of programs or other protected works;
- The documentation or the packaging was counterfeit, or the labels were counterfeit or illicit; and
- Federal jurisdiction exists.
Remedies for a Section 2318 Violation
Prosecutors may favor a section 2318 charge, because the mens rea and minimum threshold for illegal conduct are generally lower than those contained in the Copyright Act. Moreover, a prosecutor is not required to prove that the marks are identical to or substantially indistinguishable from registered marks.
For § 2318 offenses, the maximum penalty is a fine of $250,000 and five years’ imprisonment for an individual and up to $500,000 in fines for an organization. In the alternative, the individual or organization may be fined twice the pecuniary gain or loss without limit. Restitution may also be available.
Possible Defenses to a § 2318 Violation
Section 2318 has no specified statute of limitations and is thus subject to the general five-year limitations period.
Section 2318 may also be applied in limited circumstances to those cases where either the original or counterfeit or illicit copies are electronic or digital in form.
On the other hand, the first-sale defense has generally been rejected in the context of § 2318, even though it is often a valid defense under 17 U.S.C. § 109.175
Freeman Law provides white-collar defense representation. Freeman Law offers zealous legal representation for those under investigation or who stand accused of violating federal white-collar criminal statutes.
 Office of Legal Educ. Exec. Off. of U.S. Att’ys., Prosecuting Intellectual Property Crimes 281 (4th ed. 2013).
 18 U.S.C. § 2318.
 Office of Legal Educ., supra note 1, at 291-92.
 18 U.S.C. § 2318(a).
 18 U.S.C. § 3571(a)-(d).
 United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
 The Trademark Counterfeiting Act, 18 U.S.C. § 2318; 18 U.S.C. § 3282(a).
 Office of Legal Educ., supra note 1, at 290-91.