Just Don’t Do It: The recent federal prosecution for fake Nikes

From at least in or about January 2016, up to and including July 2018, in New York and New Jersey, Mikuki Suen, 43, Jian Min Huang, 42, Songhua Qu, 54, Kin Lui Chen, 53, and Fangrang Qu, 31 and others known and unknown allegedly smuggled hundreds of thousands of pairs of fake Nike Air Jordan sneakers. The five accused fake-shoes traffickers were arrested for having counterfeited over $70 million in Fake Nike shoes and sold them to buyers on the U.S. market. The NYPD and the Department of Homeland Security received the help of a confidential source who helped make numerous purchases during the investigation. This confidential source has been a law enforcement source for approximately two years.

Nike’s Air Jordan line of sneakers are some of the most popular and expensive athletic shoes in circulation. Nike has released a different Air Jordan model almost every year since the shoe line was first introduced in 1984. Many of these models are known by their model number, like the Air Jordan XIII, the 13^th model, and some models are known by the year of introduction, like the Air Jordan 2009. Air Jordan sneakers can cost from approximately 100$ to the thousands of dollars, depending on color and design.

More than 42 containers carrying nearly 400 000 pairs of the trendy fake sneakers traveled from factories in China to Port Newark. These sneakers were produced to resemble Air Jordan sneakers in design and color but are “generic” (the “Generic Air Jordan”). They were imported into the U.S. without the inclusion of logos that are trademarks registered with the United States Patent and Trademark Office (“USPTO”). Once the Generic Air Jordan arrived in the U.S., they were altered within the New York area to add trademarked logos to the shoes in warehouses in Queens and Brooklyn. Once this alteration took place, the shoes were considered “counterfeit”. Finally, the Counterfeit Sneaker Ring processed with the distribution of the fake shoes within the U.S. at a significant profit.

The case is being prosecuted by the U.S. Attorney in Manhattan, Geoffrey Berman, because many of the shoes were shipped in and out of that jurisdiction. The U.S Attorney said in a statement that he commends “our law enforcement partners for helping to bring today’s charges, which send a clear message to would-be counterfeiters: ‘Just don’t do it’ ”.

Indeed, the 5 defendants face two charges according to the complaint:

• Counterfeit trafficking conspiracy (Title 18 United States Code Section 2320(a) (1))
• Trafficking in counterfeit goods (Title 18 United States Code Section 2320 and 2.)

Under Title 18 United States Code section 2320, it is unlawful to willfully and knowingly perform, attempt, or conspire to perform any of the following acts:

• traffic in goods or services and knowingly use a counterfeit mark on or in connection with such goods or services;
• traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive;
• traffic in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security; or
• traffic in a counterfeit drug.

In order for the five defendants to be found guilty of federal counterfeiting, the U.S. Attorney will have to prove all of the following beyond a reasonable doubt:

• They trafficked, attempted to traffic, or conspired to traffic in goods, services or pharmaceutical drugs;
• The goods, services or pharmaceutical drugs were counterfeit or unoriginal from those created by the trademark owner of these goods, services, or drugs;
• They knew the goods, services or pharmaceutical drugs were unoriginal or counterfeit in nature;
• And they intended for the goods, services, or pharmaceutical drugs to be fraudulently passed as original, and for them to be distributed as such.

The term “counterfeit mark” means a spurious mark:

• that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;
• that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United StatesPatent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;
• that is applied to or used in connection with the goods or services for which the mark is registered with the United StatesPatent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and
• the use of which is likely to cause confusion, to cause mistake, or to deceive.

Under 18 USC 2320, counterfeiting is a federal offense. These defendants face a sentence of up to 10 years in federal prison and fines of up to $2 million if they are convicted of this crime. If it is their second or subsequent offense for federal counterfeiting, they face a fine of up $5 million and up to 20 years in prison.

The author of this article is a federal criminal defense attorney and former prosecutor. If you or a loved one have been arrested for a federal offense, you should strongly consider contacting him to discuss your case and his possible representation.