Yes, the government messed up big time. The court said these bracelets are definitely counterfeits. The whole point of the anti-counterfeit law is to punish fakers and stop them from stealing famous brand designs. If you let an expert with a magnifying glass make the final call, they'll almost always find a tiny flaw, which lets the counterfeiter off with a slap on the wrist. The court ruled that the right way to test for a counterfeit is to ask: 'Would a normal person shopping for this item be fooled?' And you have to compare the fake one to a real Rolex product, because that's what the criminals are actually trying to copy, not some flat drawing in a government file.

Yes, when deciding if a trademark is fake, we should think like a regular shopper, not an expert. This is because the law is meant to stop fakes and protect real brands. We should compare the questionable item to real products, not just trademark paperwork. The judge was right that the bracelets were fakes and should be destroyed. Using the 'regular shopper test' fits best with the law's purpose to really punish fake products that copy real trademarks. Customs' arguments about only looking at paperwork and using an expert's view don't make sense, because they would make the law much weaker against fakes. When the court looked at the bracelets themselves, they thought regular shoppers wouldn't be able to tell them apart from real Rolex ones.

Yes. The Customs Service's determination was not in accordance with law because it used the incorrect legal standards. To determine if a mark is a 'counterfeit'—meaning it is 'substantially indistinguishable' from a registered mark—the comparison must be made from the perspective of an average purchaser, not an expert. The court's reasoning is rooted in the legislative intent behind 19 U.S.C. § 1526(e), which was to create a strong deterrent and stiffen penalties against counterfeiters. An 'expert test' would undermine this purpose, as an expert using magnification could almost always find minute differences, allowing counterfeiters to escape the harsh penalty of forfeiture. Furthermore, the court held that the comparison should be made against the mark as it appears on actual merchandise, because counterfeiters copy real products, not two-dimensional registration certificates. Using the registration drawing would create a loophole for three-dimensional counterfeits that differ slightly from the flat drawing but are identical to the mark on the real product.

Yes, the definition of a 'counterfeit' trademark should be applied from the standpoint of an average purchaser, because the purpose of the statute is to deter counterfeiting and protect trademarks. The comparison should be made with the mark as it appears on actual merchandise, not just the registration certificate. The district court's interpretation and application of § 1526(e) is consistent with its punitive and deterrent purposes, and thus the decision to order forfeiture of the bracelets is affirmed. Adopting the 'average purchaser' test will best further the related purposes of the statute to provide an 'effective sanction' against merchandise which 'simulates or copies a registered trademark.' Customs' arguments that only the registered mark should be considered and that an expert perspective should govern are unpersuasive, as they would undermine the efficacy of the anti-counterfeiting provision. Upon the court's own examination, the accused bracelets are substantially indistinguishable from genuine Rolex merchandise from the perspective of an average purchaser.

Montres Rolex, S.A. v. Snyder

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