Fake Fakes

Reviewed by Kyu Hee Chu

Feign even the slightest interest in the goods and wares being hawked along Canal Street in Chinatown and one is likely to wind up in a conversation with the vendor hushed nearly to a whisper.  Many tourists and thrifty New Yorkers alike know the drill—the exchange bargained for is often not exactly legal.

While the quality and authenticity of Chinatown’s merchandise is oft-debated, a recent raid on a funeral supplies store shed light on a new facet of the grey-area marketplace:  what protection is afforded to merchandise that is clearly fake?  As in, flimsy cardboard and paper versions of luxury goods designed specifically for traditional Chinese funeral burnings as symbolic gifts to the deceased.  Fakes that are supposed to be fake.

The issue arose not long ago when an officer with the NYPD targeted the Fook On Sing Funeral Supplies Store on Mulberry St.  The goods being sold at Fook On Sing, according to a New York Times report, were “obviously cardboard,” but had print designs of luxury trademarks resembling Louis Vuitton’s and Gucci’s.

While to some the practice of selling these goods seems to be a clear infringement of trademark, to others, the goods fall under a type of religious exception because of their deeper underlying traditional purpose.

Notably, as the items offered to the dead change with the times, the store owners were unaware that updating their merchandise to reflect current luxury trends would go against American copyright and trademark laws.  Ignorance of the law, however, is not usually a valid defense.

But, black-letter law aside, when long-standing cultural customs and trademark laws clash, what side ought to win out?  An inquiry into which side is harmed more is perhaps appropriate, given the unique conundrum.  While the luxury brands certainly have a valid argument that they have given no permission for this use, they are harmed only by way of association, or unlawful “endorsement.”  And even that is a tenuous argument, considering the association is largely a positive one—a symbolic gesture of approval of the brand.

The harm on the other side of the coin may be more understood, if still not tangible.  In the Times account, Councilwoman Margaret Chin questioned whether the police maneuver was culturally sensitive, arguing that “this has been going on for hundreds of years, the Chinese burning offerings to the dead, and that’s what these kinds of stores are for.  It’s hard to understand how someone could mistake this for criminal activity.”

Yet criminal activity is indeed what has been charged.  A worker at the store was arrested and charged with two counts of copyright infringement in the third degree.

Complicating the issue, the Internet, as usual, has created an additional wrinkle in the matter.  As more and more people honor the deceased digitally via “tribute” websites, virtual fake luxury items are now burned virtually.  Where should the line be drawn?


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