## Facts

- John Torkington operated a booth at an indoor flea market in Fort Lauderdale, Florida.
- A private investigator for Rolex observed a salesman at the booth showing customers watches bearing the “Rolex” name and crown emblem.
- The watches were kept under the counter, described as virtually indistinguishable from authentic Rolex watches, and were not openly displayed.
- The investigator asked to see “replica” Rolex models and bought one for $27; the watch was provided in a pouch bearing the Rolex crown mark.
- It was undisputed that the investigator knew the watch was a replica rather than an authentic Rolex.
- A deputy U.S. marshal later executed a search and seizure order at the booth and seized 742 replica watches bearing the Rolex name and crown trademarks.
- A federal grand jury indicted Torkington for trafficking in, and attempting to traffic in, counterfeit Rolex watches under 18 U.S.C. § 2320.

## Issues

1. Whether 18 U.S.C. § 2320(d)(1)(A) requires proof that direct purchasers are likely to be confused, mistaken, or deceived.
2. Whether the likelihood-of-confusion inquiry under § 2320 includes post-sale confusion among other members of the purchasing public.
3. Whether a large price disparity between genuine goods and alleged counterfeits forecloses finding a “counterfeit mark” as a matter of law.

## Decision

- The Eleventh Circuit reversed the district court’s dismissal of the indictment and remanded.
- The court held that § 2320(d)(1)(A) does not require a showing that direct purchasers are likely to be confused, mistaken, or deceived.
- The court held that the statute is satisfied if members of the purchasing public are likely to be confused, mistaken, or deceived.
- The court held that likely confusion may be shown in a post-sale context and is relevant to the “counterfeit mark” definition.
- The court rejected treating price differential as a categorical bar to prosecution under § 2320.

## Legal Principles

- For § 2320(d)(1)(A), the relevant likelihood-of-confusion inquiry is directed to the purchasing public, not limited to the immediate buyer at the point of sale.
- Likelihood of confusion under § 2320 includes post-sale confusion, including confusion by observers who encounter the product after purchase.
- A substantial price differential may be probative on confusion but does not, by itself, defeat the statutory definition of a “counterfeit mark” as a matter of law.
- Criminal counterfeiting under § 2320 targets trafficking in goods bearing spurious marks that are identical with, or substantially indistinguishable from, registered marks when such use is likely to cause confusion among the purchasing public.

## Conclusion

The Eleventh Circuit held that § 2320’s “counterfeit mark” definition turns on likely confusion among the purchasing public, including post-sale confusion, and does not depend on whether the direct purchaser is deceived; it therefore reinstated the indictment and remanded for further proceedings under that standard.


United States v. Torkington, 812 F.2d 1347 (11th Cir. 1987)