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Using the De Minimis Defense in Federal Counterfeiting Cases
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- 1 Using the De Minimis Defense in Federal Counterfeiting Cases
Using the De Minimis Defense in Federal Counterfeiting Cases
Counterfeiting cases can seem really scary. The penalties are super harsh. But there are defenses you can use to fight the charges. One little-known defense is called the de minimis defense. This article explains how it works.
What is Counterfeiting?
Counterfeiting means making or selling something that looks like the real deal but isn’t. Like making fake designer purses or fake money. It’s illegal under federal law. The penalties are really severe. Even for small amounts. That’s because counterfeiting hurts businesses and the economy.
Why are the Penalties So Harsh?
Federal counterfeiting laws aim to deter people from doing it. The penalties are harsh even for small amounts. For example, counterfeiting less than $1,000 can get you up to 10 years in prison. From $1,000 to $2,000 can get up to 15 years. And it keeps going up. There are also big fines. Like up to $250,000 for individuals. Or up to $500,000 for organizations.
What is the De Minimis Defense?
De minimis means “too minor to matter.” The de minimis defense argues that what you did was so minor it doesn’t deserve punishment. For counterfeiting, it means the amount was tiny. Not enough to harm the business you copied. And you weren’t selling it. You were just using it yourself.
When Does the De Minimis Defense Work?
There are no hard rules on when de minimis works. It depends on the specific facts. But some factors help:
- Tiny amount – just for personal use
- One-time incident – not part of a pattern
- Not sold for profit – just for yourself
- Low quality – obviously not the real thing
- No actual harm – didn’t hurt the business
The less you counterfeited, the better your chances. The defense is for minor, no-harm cases. Not for serious counterfeiting operations.
What Does the Case Law Say?
There aren’t a ton of cases on de minimis counterfeiting defenses. But here are some key ones:
United States v. Gantos
In this case, Gantos made one counterfeit bill. He used it to buy a pack of cigarettes. The court let him raise a de minimis defense. His counterfeiting was minor and didn’t hurt the business. But the jury convicted him anyway. The case shows de minimis can apply to counterfeiting. But one fake bill may still be too much.
United States v. Shepard
The court rejected a de minimis defense in this case. Shepard made 5-10 fake bills and used them to buy stuff. The court said this was more than a trivial amount. His actions did dilute the value of real currency. So no de minimis for him.
United States v. Davenport
Davenport counterfeited 3 bills and tried a de minimis defense. But he lost because he sold the bills rather than just using them himself. Selling makes it less minor. The profits offset the low quantity.
What About Fair Use?
Another defense is fair use. This says using a trademark for criticism, news reporting, etc. is okay. But fair use rarely works for counterfeiting. Courts say it doesn’t apply to copying logos or trade dress. Or making fake goods for profit.
Does De Minimis Work for Digital Goods?
De minimis could work for pirating a few songs or movies. But bootlegging on a bigger scale won’t fly. For digital goods, de minimis depends on:
- How many files copied
- Just for personal use?
- Impact on copyright holder’s market
For minor personal use, de minimis has a better chance. But courts look at the totality of facts.
Tips for Using the Defense
Here are some tips if you want to try a de minimis defense:
- Keep the quantity really low. Like 1-5 items max.
- Make it clear you weren’t selling for profit.
- Show there was no real harm to the brand owner.
- Don’t have a history of counterfeiting activity.
- Make the fake quality obviously poor.
De minimis probably won’t work for serious or repeat offenders. It’s meant for truly minor, no-harm cases.
The Bottom Line
The de minimis defense argues your counterfeiting was too minor to be a real crime. It can possibly work if you counterfeited a tiny amount. Just for personal use. And didn’t hurt the brand owner. But there’s no guarantee. It depends on the specific facts. And judges have a lot of discretion. Talk to a lawyer to see if de minimis could apply to your case.
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