Change of Tide in Trademark Counterfeiting Cases

A recent ruling by the Federal Criminal Court of Cassation, delivered February 6, 2013 in re “Díaz, Carlos Patricio on Cassation appeal”, could change the tide in criminal prosecutions in connection with the street sale of counterfeit products.
A Federal Court of First Instance of the district of Tucumán had acquitted the defendant on charges of sale of counterfeit trademarked goods (Law No. 22,362, Section 31.d]). The Court held that the circumstances of the case (street sale of visibly counterfeit products) excluded the possibility of consumer deception and thus caused no harm to the trademark holder. 
Section I of the Federal Criminal Court of Appeals of Tucumán upheld the acquittal, affirming this strict interpretation of the protection afforded under the Argentine Trademark and Trade Names Law No. 22,362.
The Federal Prosecutor challenged the ruling before the Federal Court of Criminal Cassation, on the grounds that the potential for consumer deception is not a requisite element of the crime of trademark counterfeiting.
Section III of the Federal Criminal Court of Cassation reversed the ruling in a unanimous decision.
In so deciding, the Court of Cassation held that the Trademark Law protects both the consumer and the rights holder. Therefore, the prosecution need not show the potential for consumer deception to secure a conviction on trademark counterfeiting charges. Otherwise, trademark holders would be left unprotected despite having complied with all requirements that the State imposes precisely to acquire trademark protection.
This ruling breaks a trend that had developed in many criminal federal circuits throughout the country, whereby visibly counterfeit products were not considered to infringe criminal trademark provisions as they entailed no risk of consumer deception as to the origin of goods.