'Fake' Makeup Isn't So Pretty: Revising the Vicarious Liability Standard for Consumers Injured by Counterfeit Cosmetics

40 Pages Posted: 8 Feb 2020

See all articles by Rebecca Sachs

Rebecca Sachs

George Washington University - Law School

Date Written: April 9, 2019

Abstract

While counterfeiting is a widespread issue that affects countless industries, counterfeit cosmetics occupy a uniquely dangerous segment of the overall counterfeit market. The ease of access, the popularity of luxury brands, and the numerous health and safety risks pose a risk to consumers that is distinct from other kinds of counterfeit products. Despite these dangers, there is currently no truly effective way for an individual consumer who has been injured by counterfeit cosmetics to obtain legal recourse for the harm they have suffered. In order to allow injured consumers to receive compensation for their harm, Congress should adopt the more expansive theory of vicarious liability used in copyright law rather than the strict test currently used in trademark law to allow consumers to bring suits against the retailers of counterfeit cosmetics. This fusion between traditional tort principles and intellectual property law will allow consumers who relied on a trusted mark and were deceived by counterfeiters to access compensatory damages.

Keywords: counterfeit, cosmetics, copyright, trademark, vicarious liability, personal injury

JEL Classification: K13, K11, K19

Suggested Citation

Sachs, Rebecca, 'Fake' Makeup Isn't So Pretty: Revising the Vicarious Liability Standard for Consumers Injured by Counterfeit Cosmetics (April 9, 2019). Available at SSRN: https://ssrn.com/abstract=3519965 or http://dx.doi.org/10.2139/ssrn.3519965

Rebecca Sachs (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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