## Facts

- Jerome Daniel Foote operated “Replicas,” a business selling “reproductions” of brand-name items from his home and later a storefront in Kansas.
- Investigators observed goods whose original tags had been removed and replaced with tags bearing famous trademarks.
- A trademark investigator concluded some items were counterfeit; Foote described them as extremely high-quality “copies.”
- The investigator and FBI agents purchased items from the store, including a counterfeit Mont Blanc pen.
- Foote was indicted on multiple counts, but the jury convictions at issue were for trafficking in counterfeit goods and conspiracy, based on the single pen transaction, under 18 U.S.C. §§ 2320 and 371.
- The district court sentenced Foote using a Guidelines manual later than the one in effect at the time of the offense conduct.

## Issues

1. Whether the jury instruction on “likelihood of confusion” under 18 U.S.C. § 2320 improperly allowed conviction based on confusion of an average consumer rather than Foote’s actual purchasers who were told items were “replicas.”
2. Whether the evidence was sufficient to prove the § 2320 element that use of the counterfeit mark was likely to cause confusion, mistake, or deception.
3. Whether the district court erred by applying the wrong version of the U.S. Sentencing Guidelines.

## Decision

- The Tenth Circuit affirmed Foote’s convictions for trafficking in counterfeit goods and conspiracy.
- The court held the “average consumer” likelihood-of-confusion instruction correctly stated the § 2320 standard and did not require proof that Foote’s immediate customers were deceived.
- The court held the evidence supported a finding beyond a reasonable doubt that the counterfeit mark use was likely to cause confusion.
- The court vacated the sentence and remanded for resentencing because the district court used an incorrect Guidelines manual.

## Legal Principles

- For 18 U.S.C. § 2320, “likely to cause confusion, to cause mistake, or to deceive” is assessed from the standpoint of an average or reasonable consumer; the government need not prove actual confusion or deception of the defendant’s immediate purchasers.
- Disclosure to some buyers that goods are “copies” does not defeat § 2320 liability when counterfeit-marked goods could enter commerce and confuse other consumers.
- In federal sentencing, courts generally apply the Guidelines manual in effect at the time of the offense conduct when use of a later manual is improper, including where it raises ex post facto concerns.

## Conclusion

The court upheld Foote’s counterfeiting and conspiracy convictions because § 2320 turns on likely confusion to an average consumer and the evidence supported that element, but it required resentencing due to use of the wrong Sentencing Guidelines version.


United States v. Foote, 413 F.3d 1240 (10th Cir. 2005)