## Facts

- Vatchagan Petrosian and associates purchased genuine Coca-Cola bottles and used Coca-Cola trademarks and packaging.
- They filled the bottles with a cola-like carbonated beverage that was not made by Coca-Cola.
- They sold the bottles to purchasers as if the beverage were Coca-Cola.
- A federal jury convicted Petrosian of trafficking in counterfeit marks under 18 U.S.C. § 2320(a), as well as mail fraud and conspiracy.
- The district court instructed the jury that a “counterfeit mark” includes genuine trademarks affixed to packaging containing products not made by, but sold as products of, the trademark owner.
- Petrosian appealed, arguing the instruction misstated the statutory element “counterfeit mark” by treating genuine marks as counterfeit.

## Issues

1. Whether a “counterfeit mark” under 18 U.S.C. § 2320 can include a genuine registered trademark when used on non-genuine goods sold as the trademark owner’s product.
2. Whether the district court’s jury instruction defining “counterfeit mark” misstated an element of § 2320.

## Decision

- The Ninth Circuit reviewed the challenged instruction de novo.
- The court held the instruction correctly stated the law under § 2320.
- The court affirmed Petrosian’s convictions for counterfeit trafficking, mail fraud, and conspiracy.

## Legal Principles

- Whether a jury instruction misstates an element of a statutory crime is reviewed de novo.
- Under 18 U.S.C. § 2320(d)(1)(A), a “counterfeit mark” includes a “spurious” mark that is identical or substantially indistinguishable from a registered mark and whose use is likely to confuse, mislead, or deceive.
- A genuine trademark can become “spurious” for § 2320 purposes when affixed to non-genuine goods in a way that falsely indicates the trademark owner is the source of the goods.
- The relevant inquiry is the mark’s use in commerce to misrepresent source or identity, not whether the physical label or mark was originally authentic.

## Conclusion

The Ninth Circuit affirmed Petrosian’s convictions, holding that § 2320 reaches schemes using genuine trademarks on non-genuine goods sold as the trademark owner’s products because that deceptive use renders the mark “spurious” and therefore a “counterfeit mark.”


United States v. Petrosian, 126 F.3d 1232 (9th Cir. 1997)