Title: The Counterfeit Sham
Domain: Law

Question: Why do policymakers, courts and academia in the field of design patents frequently use the term "counterfeit", which has a specific legal definition, to describe infringement of design patents? How does this rhetorical strategy distort legal logic, evade due process protection, and ultimately lead to an excessive reinforcement of legal remedies for design patent holders, thereby harming public interests?

Background: Existing research has revealed a strict definition of "counterfeiting" under trademark law, as well as an independent legal framework for design patent infringement, namely visual similarity testing. However, similar rhetorical abuse exists in other IP fields such as copyright, but there is a lack of systematic criticism in the field of design patents. At the legislative level, the Anti-Counterfeiting Goods Seizure Act of 2019 attempted to grant customs the power to seize products infringing on design patents, but the name and content of the act were mismatched. At the judicial level, in "Schedule A cases", the plaintiff used the rhetoric of "counterfeiting" to obtain unconventional remedies and associated design patent infringement with transnational crimes to circumvent due process. Industry organizations such as INTA and AIPLA, as well as lawyers, deliberately confuse concepts in court opinions and industry conferences, equating design patents with the safety risks of "counterfeit" goods.

Definitions: 1.Legal definition of Counterfeiting (Actual Counterfeiting) : "False marks that are identical with or substantially indistincishable from registered trademarks" as defined in Section 1127 of the Lanham Act of the United States is the worst form of trademark infringement and criminal responsibility can be pursued. | 2.Colloquial Counterfeiting: The act of "intentionally imitating another thing to deceive" in everyday language, without strict legal requirements. | 3. Counterfeit Rhetoric: When there is no actual counterfeit behavior (such as pure design patent infringement cases), the term "counterfeit" is strategically used to create moral panic.

Methodology: The main method adopted is legal empirical analysis: | First, deconstruct the normative differences between Trademark law and design patent law, and clarify the infringement standards through case law. | Second, collect records of congressional hearings, court documents, industry reports and academic discourses to analyze the dissemination paths of "fake" narratives.

Answer: 1. Revealing why the term "counterfeit" is used: Firstly, emotional agitation, "counterfeit" specifically refers to the intentional act of counterfeiting registered trademarks in US intellectual property law. Fake drugs and inferior car parts are directly related to public safety risks and carry strong negative moral connotations. Binding design patent infringement with "counterfeiting" can evoke fear of public safety, such as claiming that "counterfeit electronic products will explode", thus giving ordinary infringement behavior a moral label of "social harm". Secondly, avoid differences in legal logic. What are the differences in legal definitions between counterfeiting and design patents. Trademark Counterfeiting requires: ① counterfeiting registered trademarks; ② Causing consumers to confuse sources; ③ Usually with fraudulent intent. Design Patent Infringement requires: ① The product appearance is "substantially similar" to the patented design (only visually comparable); ② No need to prove trademark confusion or subjective malice (strict liability). Through rhetorical confusion, policy makers attempt to conceal the fundamental differences between the two and avoid the legal logic loophole of "design patents not protecting source identification functions". Thirdly, promote special policy agendas, such as the 2019 Counterfeit Goods Seize Act, which ostensibly combats "counterfeiting" but actually authorizes customs to seize design patent infringing products. This move shifts the cost of private rights protection onto the government, with taxpayers bearing the cost of law enforcement, and legitimizes it under the guise of "public safety". | 2. Revealing the impact of incorrect usage: Firstly, fabricating the harmfulness of infringing behavior and distorting legal logic. Infringement of design patents does not necessarily lead to product quality issues or safety risks. But the rhetoric of "counterfeiting" forcibly associates infringing products with real cases such as "toxic cosmetics" and "explosive batteries", creating a false causal chain. Secondly, changing the legal elements can strategically avoid the functional exclusion principle of trademark law. If a product design has practical functions, it cannot obtain trademark protection, but patent law does not have this restriction. Thirdly, it harms public interests by shifting the cost of private rights protection onto the government, requiring taxpayers to subsidize corporate rights protection and encroaching on public law enforcement resources. Fourthly, the relief path is distorted. The original purpose of patent law compensation was to compensate for design innovation, but the rhetoric of "counterfeiting" has driven excessive compensation, such as advocating for "total profit" (including the value of non infringing components) to replace "proportional sharing". And it will also generate program privileges, such as breaking due process and freezing hundreds of merchant assets in bulk under the pretext of cracking down on "counterfeiting" in Schedule A litigation. | 3. Establish the principle of legal terminology norms. In the fields of policy and justice, the use of "counterfeit" is strictly limited to scenarios defined by the Lanham Act, and its extension to infringement of design patents is prohibited. Moreover, when citing "fake" data in legislative hearings, court documents, and academic research, it is necessary to clearly define the standard of the data source and provide relevance arguments. | 4. Improve the judicial review and procedural guarantee system. First, the abuse of "Appendix A cases" should be restricted. Courts can only apply unilateral asset freezing in actual counterfeiting cases, and design patent cases must go through the opposition procedure. The court appointed an independent design patent expert to review the application of the "ordinary observer test" and particularly assess the scope of patent protection. Second, implement a hierarchical review mechanism. Judges need to compare the drawings of the patent involved in the case with the visualized differences of the accused product, and rule out "obviously dissimilar" (plainly dissimilar) cases based on the Egyptian Goddess case standard for preliminary review. For suspected infringing products, a thorough assessment should be conducted, and the defendant should be compelled to provide evidence of existing designs to prevent the plaintiff from selectively using information to mislead the judgment. | 5. Reconstruct the law enforcement and relief system for intellectual property rights. First, strictly define the boundaries of customs law enforcement and refuse to include design patents within the scope of active customs investigation and handling. Because infringement of design patents requires comparison with prior art, the customs lacks professional capabilities. Moreover, the existing International Trade Commission (ITC) procedures have provided relief channels, and enhancing their efficiency is superior to adding high-risk law enforcement. Second, the compensation rules should be reformed. The loophole of the "total profits" rule left over from the Samsung v. Apple case should be abolished. The compensation should be calculated based on the "principle of proportionality" to avoid seeking excessive profits through "fake" narratives. | 6. Institutionalized response rhetorical strategies. First, expose the mechanism of interest transfer. The "fake security theory" in legislative lobbying is essentially a strategy of publicizing the cost of private rights enforcement. It is mandatory for the proposer to provide evidence in the congressional records of the statistical correlation between design patent infringement and product safety. Second, Judicial education and training should be carried out. The Federal Judicial Center should add a special course on design patent law, focusing on deconstructing the limited protection scope of fragmented design patents and cases of legal conflicts between design patents and the functionality doctrine of trademarks.

Checklist: 1. Point out the legal fallacy: design patent infringement does not require trademark use, confusion, or safety risks, and is not equivalent to counterfeiting.  
2. Refute the false safety proposition: design patents are not quality certifications, and product safety is irrelevant to infringement.  
3. Analyze the root cause: the “fake” narrative is a lobbying tactic to shift enforcement costs and weaken procedural protections.  
4. Identify judicial impact: this fallacy led to mass unilateral relief in “Schedule A” cases, depriving defendants of due process rights.