Amicus Curiae Brief — Perfect 10, Inc. v. Visa International Service Association, (2008) (No. 1026)

2 | FILED

No. 07-1026 | MAR 3 1 2008

SUPREME COURT US

an Tr s “J.

Supreme Court of the Anited States

®

PERFECT 10, INC.,

Petitioner,

v.

VISA INTERNATIONAL SERVICE

ASSOCIATION, ET AL.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF THE INTERNATIONAL

ANTICOUNTERFEITNG COALITION INC.

AND THE AMERICAN APPAREL AND

FOOTWEAR ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

+

THOMAS R. FITZSIMONS

Counsel of Record

PAUL G. JUETTNER

LAURA R. WANEK

CHRISTOPHER J. MCGEEHAN

GREER, BURNS & CRAIN, LTD.

300 S. Wacker Drive

Suite 2500

Chicago, Illinois 60606

(312) 360-0080

March 31, 2008

ne wens mo ae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

3

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICI CU-

THE NINTH CIRCUIT CLEARLY ERRED

AND WEAKENED EFFORTS TO COM-

BAT PIRACY AND COUNTERFEITING

BY HOLDING THAT INTELLECTUAL

PROPERTY OWNERS HAVE NO CAUSE

OF ACTION AGAINST CREDIT CARD

COMPANIES THAT KNOWINGLY PROC-

ESS PAYMENTS FOR THE SALE OF

COUNTERFEIT PRODUCTS ...0..cccscccccesees:

A. The Ninth Circuit erred in framing the

issue of secondary trademark liability;

the credit card network is an instru-

mentality in the sale of counterfeit

products, and the credit card compa-

nies directly control illegal sales...........

B. Trafficking of pirated copyrighted

works and counterfeit products is a

significant threat to the economy, pub-

lic health and National security ...........

C. Sale of counterfeit products via the

Internet requires the participation of

the credit card companies and presents

a growing counterfeiting model ............

CERIN tiie acscsscnanndonnencansbecbepegelaeasaaniaaan

TABLE OF AUTHORITIES

Page

CASES

Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d

| RCS Saar en Teepe eae m Ne Ee Eom aenee cir 5, 8

Hard Rock Cafe Licensing Corp. v. Concession

Serus., Inc., 955 F.2d 1143 (7th Cir. 1992) ........... 5,8

Lockheed Martin Corp. v. Network Solutions,

Inc., 194 F.3d 980 (9th Cir. 1999) ..............csscceceees 5,7

Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 494

F.34 768 (Sth Cir. 2007) ......c0cccssescovcesesseees 5, 6, 13, 14

Sony Corp. of America v. Universal City Stu-

GEAR, GAG (ROE ocncccecocsnsscecsossasecsesaniogl 4

STATUTES

EO IRD is ccscccnkssivcnsasassnestsavsabcwssscbaneheiaell 6

MISCELLANEOUS

Computer Crime and Intellectual Property

Section, U.S. Dep’t of Justice, PROSECUTING

INTELLECTUAL PROPERTY CRIMES (3d. ed.

2006), available at http:/Awww.cybercrime.

gov/ipmanual/Olipma.html........0..0... eee eee eeeeee 9,12

David H. Press, Card Association Rules and

Regs 2007: Get Ready for Scrutiny, THE

GREEN SHEET, Jan. 8, 2007, at 92, available

at http://www.greensheet.com/gsonline_pdfs/

ESERIES ACER RS de see aeORE ARAM NpalcapoR EA» 8

ili

TABLE OF AUTHORITIES — Continued

Examining U.S. Government Enforcement of

Intellectual Property Rights Before the S. Comm.

on the Judiciary, 110th Cong. (2007) (statement

of Sen. Evan Bayh), available at http:/Audiciary.

senate.gov/testimony.cfm?id=3020&wit_id=6760 ..

Intellectual Property Crimes: Are Proceeds from

Counterfeited Goods Funding Terrorism Be-

fore the H. Comm. on Intl Relations, 108th

Cong. 10-17 (2003) (public testimony of

Ronald K. Noble, Secretary-General of IN-

TERPOL), available at http://www.foreign

affairs. house.gov/archives/108/88392.pdf .........

L. Richard Fischer & Russell W. Schrader,

Morality Enforcement Through Payment Sys-

tems Regulation: Overview of Federal

Framework for Payment Systems Regulation

and Enforcement and Industry Reaction,

American Bar Association Section of Busi-

ness Law Consumer Financial Services

Committee Newsletter (August 2006) avail-

able at http://www.abanet.org/buslaw/commit-

tees/CL230000pub/newsletter/200608/fischer.

Org. for Econ. Co-Operation & Dev., THE Eco-

NOMIC IMPACT OF COUNTERFEITING AND PIRACY

ParT I: OVERALL ASSESSMENT (2007 Draft),

available at http://www.oecd.org/dataoecd/36/

Page

9$6/39543399. pdf ...........c..co--cuescecsseecoeeeo 10, 11, 12, 13

TABLE OF AUTHORITIES — Continued

Press Release, Senator Carl Levin, Statement of

Senator Carl Levin on Intellectual Property

Rights Issues and the Dangers of Counter-

feited Goods Imported Into the United States

(June 18, 2007), available at http:/Awww.senate.

gov/~levin/newsroom/release.cfm?id=277302.....

Press Release, U.S. Food and Drug Admin.,

FDA Warns Consumers about Counterfeit

Drugs from Multiple Internet Sellers (May 1,

2007), available at http://www.fda.gov/bbs/

topics/NEWS/2007/NEW01623.html.................

Press Release, U.S. Customs and Border Pro-

tection, U.S. Customs Announces Interna-

tional Counterfeit Case Involving Caterpillar

Heavy Equipment (May 29, 2002), available at

http://www.cbp.gov/xp/cgov/newsroom/news_

releases/archives/legacy/2002/52002/05292002.

p | REP ROHR DR PRONE coe oss feet OS My SRV ORC AE be ENCE EP

Remarks on Signing the Stop Counterfeiting in

Manufactured Goods Act, 42 WEEKLY COMP.

PREs. Doc. 482 (March 16, 2006).......................

Restatement (Second) of Torts §877(c) (1979)......

U.S. Chamber of Commerce & Gallup Consul-

tancy, COUNTERFEITING IN THE UNITED STATES:

CONSUMER BEHAVIORS AND ATTITUDES 8 (2007),

available at http://www.thetruecosts.org/portal/

RI a ios icin sae csc ccsaaneapibatiannicaniins

Page

seniuias 9

1

Pursuant to Supreme Court Rule 37.2, amici

curiae respectfully file this brief in support of the

petition for certiorari.

a

STATEMENT OF INTEREST

OF AMICI CURIAE'’

The International AntiCounterfeiting Coalition

Inc. (IACC) is devoted solely to combating product

counterfeiting and piracy. Formed in 1979, it in-

cludes today a cross section of business and industry

— from automobiles, apparel, luxury goods and

pharmaceuticals, to food, software and entertain-

ment. The touchstone of the IACC’s mission is to

combat counterfeiting and piracy by promoting laws,

regulations and directives designed to render the

theft of intellectual property undesirable and unprof-

itable, as well as to educate policy makers and law

enforcement about intellectual property in order to

secure more effective intellectual property enforce-

ment. Critical to the [ACC’s purpose is its belief that

" This Brief is filed with the consent of all parties. The

parties’ letters of consent to the filing of this brief have been

filed with the Clerk. Pursuant to Rule 37.6, amici curiae disclose

that no counsel for any party in this case authored this brief in

whole or in part, and no person or entity, other than amici curiae

IACC and AAFA, their members, or their counsel, made a

monetary contribution to the preparation of the submission of

this Brief. Counsel of record for all parties received notice at

least 10 days prior to the due date of the amici IACC and AAFA’s

intention to file this Brief.

2

acts of counterfeiting cause not only economic harm,

but severe public health and safety hazards. The

IACC initiates actions and supports government

initiatives that will ultimately result in increased

enforcement, lead to the prosecution of intellectual

property infringers, and create strong deterrents to

counterfeiters and pirates.

The American Apparel & Footwear Association

(AAFA) is the national trade association for apparel,

footwear and other sewn-products companies and

suppliers that compete in the global market. AAFA

was formed in August 2000 through the merger of two

highly-regarded trade associations: the American

Apparel Manufacturers Association and the Footwear

Industries of America. The Association’s membership

represents at least seventy-two percent of the Na-

tion’s apparel and footwear market at wholesale.

AAFA’s mission is to promote and enhance its mem-

bers’ competitiveness, productivity and profitability

in the global market. AAFA seeks to achieve this

mission by, inter alia, representing its members’

points of view and advocating their concerns before

the public and all branches of government in order to

advance the association’s legislative, international

trade and regulatory objectives.

Petitioner Perfect 10 is not a member of either

the IACC or AAFA. No Respondent is a member of

LACE or AAFA.

3

Consistent with their stated missions, IACC and

AAFA submit this brief to assist this Court’s under-

standing of the significant impact of the Ninth Cir-

cuit’s decision. The Ninth Circuit’s untoward decision

impacts not only the entertainment industry and its

digitally transmitted products, but extends to the

products of all industries beset by trademark counter-

feiting. Unless this Court reviews the Ninth Circuit’s

decision, intellectual property owners and the public

as a whole will continue to suffer increasing injury.

ie

4

REASON FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT CLEARLY ERRED -

AND WEAKENED EFFORTS TO COMBAT

PIRACY AND COUNTERFEITING - BY

HOLDING THAT INTELLECTUAL PROP-

ERTY OWNERS HAVE NO CAUSE OF

ACTION AGAINST CREDIT CARD COM.-

PANIES THAT KNOWINGLY PROCESS

PAYMENTS FOR THE SALE OF COUN-

TERFEIT PRODUCTS

The effects of the Ninth Circuit’s decision extend

far beyond the facts of the instant case. While the

petition and Judge Kozinski’s dissent address the

disastrous consequences for creators of digital prod-

ucts such as music, movies and software, neither

addresses the ramifications of this decision on efforts

to combat trademark counterfeiting involving tangi-

ble products such as pharmaceuticals, apparel

and footwear. The decision below sets a dangerous

4

precedent in the law of secondary liability for copy-

right and trademark infringement. Further, the

Ninth Circuit’s decision creates a safe harbor for

companies that provide Internet-based services that

are used by their customers to infringe trademarks

and copyrights. Internet-based counterfeiting is a

rapidly growing cancer that undermines the economy

and threatens the public welfare. The Petition should

be granted, given the significant adverse impact of

the Ninth Circuit decision on intellectual property

rights and the public interest.

A. The Ninth Circuit erred in framing the

issue of secondary trademark liability;

the credit card network is an instru-

mentality in the sale of counterfeit

products, and the credit card compa-

nies directly control illegal sales

The courts have long recognized that parties

other than the direct infringer may be held liable for

copyright and trademark infringement under general

tort principles. Sony Corp. of America v. Universal

City Studios, Inc., 464 U.S. 417, 434-41 (1984) (“vi-

carious liability is imposed in virtually all areas of

the law, and the concept of contributory infringement

is merely a species of the broader problem of identify-

ing the circumstances in which it is just to hold one

individual accountable for the actions of another.”).

The Restatement (Second) of Torts §877(c) (1979)

provides that “one is subject to liability if he ...

permits the other to act upon his premises or with his

5

instrumentalities, knowing or having reason to know

that the other is acting or will act tortiously. ... ” Id.

The Seventh Circuit applied the Restatement rule to

contributory trademark infringement in Hard Rock

Cafe Licensing Corp. v. Concession Servs., Inc., 955

F.2d 1143, 1148-50 (7th Cir. 1992). In Hard Rock

Cafe, the Seventh Circuit held that a flea market

operator “may be liable for trademark violations [of

its lessee] if it knew or had reason to know” of the

violations. Jd. at 1149. The Ninth Circuit followed

Hard Rock Cafe in Fonovisa, Inc. v. Cherry Auction,

Inc., 76 F.3d 259 (9th Cir. 1996) holding that “a swap

meet cannot disregard its vendors’ blatant trademark

infringements with impunity.” Jd. at 265. The Ninth

Circuit then applied the rule to service providers in

Lockheed Martin Corp. v. Network Solutions, Inc. , 194

F.3d 980 (9th Cir. 1999), holding that “[d]irect control

and monitoring of the instrumentality used by a third

party to infringe the plaintiff’s mark” is required to

establish contributory trademark infringement. Jd. at

983-85.

In the present case, the Ninth Circuit held,

erroneously, that Perfect 10 failed to allege facts

sufficient to show direct control and monitoring of the

instrumentality used to infringe its trademark.

Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 494 F.3d 788,

807 (9th Cir. 2007). Extending its faulty analysis

of contributory copyright infringement, the Ninth

Circuit concluded that the credit card network is not

an instrument used to infringe Perfect 10’s trade-

mark because “the infringement” occurs without any

6

involvement of the credit card companies’ and their

payment system. Jd. According to the majority, the

credit card companies do not have the power to

remove infringing material from the pirate websites

or to directly stop distribution over the Internet. Jd.

“This without more does not constitute ‘direct con-

trol.’” Id.

The Ninth Circuit’s analysis is flawed because it

focuses on copying and distribution as the gravamen

of the infringement, while ignoring that the sale of

goods using a counterfeit mark is an act of trademark

infringement. 15 U.S.C. §1114(1)a). Thus, the prop-

erly framed questions are whether the credit card

payment processing network is an instrumentality in

the sale of products bearing counterfeit trademarks,

and whether the credit card companies monitor and

control infringing sales. On the Internet, credit cards

are instruments, the “financial lifeblood,” of the

infringing sales. Jd. at 815 (Kozinski, J., dissenting).

The credit card companies undeniably have “direct

control” over the infringing sales for which they

process payments, for without payment there is no

sale.

The pertinent inquiry is not whether unauthor-

ized reproduction and distribution of copyrighted

images occurs without any involvement of the credit

card companies and their payment system, or

* In this Brief the Respondents are collectively referred to

as the credit card companies.

7

whether card companies have the power to remove

infringing material from the pirate websites or to

directly stop distribution over the Internet. The issue

is whether the credit card companies have the power

to monitor and control the sale of goods bearing

infringing trademarks. As the dissent correctly ob-

served, “credit cards are directly involved in every

infringing transaction ... they control whether such

transactions will go forward. This is more than

enough to establish the ‘control and monitoring’ that

Lockheed Martin requires for contributory trademark

infringement.” Jd. at 822 (Kozinski, J., dissenting).

The imposition of secondary liability for know-

ingly providing an instrumentality used to infringe

trademarks will not lead to a dramatic expansion of

secondary liability as suggested by the Ninth Circuit

majority. The majority was concerned that secondary

liability would ensnare suppliers of other products,

e.g., computer hardware and software. Id. at 800.

However, these products are typically sold without

knowledge that the products will be used to carry out

an infringement, and the sellers lack the ability to

control the use of the product post sale. The critical

distinction is that payment processing on behalf of a

merchant website is not an isolated transaction but a

continuing service rendered to merchants who are

under contract with the merchant banks in the credit

card network.

8

As in Hard Rock Cafe and Fonovisa, once a credit

card company has knowledge that a particular mer-

chant is engaged in illegal activities,’ the credit card

company has a duty to cease its continuing active

participation in illegal sales of counterfeit goods. The

credit card companies need to “abide by their own

rules and stop doing business with crooks.” Id. at 824

(Kozinski, J., dissenting).

* The credit card companies currently monitor and block

other illegal sales. See David H. Press, Card Association Rules

and Regs 2007: Get Ready for Scrutiny, THE GREEN SHEET, Jan.

8, 2007, at 92, 94, available at http://www.greensheet.com/

gsonline_pdfs/070101.pdf (discussing fines levied by credit card

companies against merchant account servicers who process

transactions “identified as illegal, including gambling, prescrip-

tion drugs, pornography and the sale of cigarettes over the

Internet.”). The credit card companies also monitor and audit

merchant websites for compliance with their policies regarding

prohibited transactions. See L. Richard Fischer & Russell W.

Schrader, Morality Enforcement Through Payment Systems

Regulation: Overview of Federal Framework for Payment

Systems Regulation and Enforcement and Industry Reaction,

American Bar Association Section of Business Law Consumer

Financial Services Committee Newsletter (August 2006) avaii-

able at http://www.abanet.org/buslaw/committees/CL230000pub/

newslettcr/200608/fischer. pdf.

9

B. Trafficking of pirated copyrighted

works and counterfeit products is a

significant threat to the economy, pub-

lic health and National security

Counterfeiting is a significant and rapidly grow-

ing problem that touches all aspects of the Nation’s

economy. Counterfeiting and piracy cost American

companies between $200 and $250 billion a year.’ As

of 2002, counterfeiting and piracy was estimated to

have resulted in the loss of 750,000 jobs.° The U.S.

Department of Justice reports that “the trade in

counterfeit merchandise threatens the health and

safety of millions of Americans and costs manufactur-

ers billions of dollars each year.”

* President George W. Bush explained that counterfeiting

both deprives businesses and government of revenue and forces

the expenditure of funds te combat counterfeiting. Remarks on

Signing the Stop Counterfeiting in Manufactured Goods Act, 42

WEEKLY Comp. Pres. Doc. 482, 483 (March 16, 2006).

* Press Release, Senator Carl Levin, Statement of Senator

Carl Levin on Intellectual Property Rights Issues and the

Dangers of Counterfeited Goods Imported Into the United States

(June 18, 2007), available at http://www.senate.gov/~levin/

newsroom/release.cfm?id=277302.

* Press Release, U.S. Customs and Border Protection, U.S.

Customs Announces International Counterfeit Case Involving

Caterpillar Heavy Equipment (May 29, 2002), available at

http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/

legacy/2002/52002/05292002.xml.

" Computer Crime and Intellectual Property Section, U.S.

Dep’t of Justice, PROSECUTING INTELLECTUAL PROPERTY CRIMES 3

(3d ed. 2006), available at http://(www.cybercrime.gov/ipmanual/

0lipma.html.

10

Counterfeiting affects nearly all industries,

including apparel and footwear, high-tech industrial

goods, medicines, automobile parts, food and bever-

ages and cosmetics, as well as music, movies and

software.” The ubiquity of counterfeit pharmaceuti-

cals online has prompted the U.S. Food and Drug

Administration to issue warnings to consumers

regarding foreign websites selling counterfeit drugs

and contraceptives.”

Counterfeiting is not only a threat to the eco-

nomic well being and public safety of our Nation, but

it also serves as a source of funds for organized

crime and terrorism. The Secretary General of

INTERPOL testified before the United States House

Committee on International Relations, that “[t]he

link between organized crime groups and counterfeit

goods is well established.” In a November 7, 2007

speech, Senator Evan Bayh emphasized the national

security dimension to the problem of trademark

* Org. for Econ. Co-Operation & Dev., THE Economic Impact

OF COUNTERFEITING AND PIRACY PART I: OVERALL ASSESSMENT

§§3.8-3.11 (2007 Draft), available at http://www.oecd.org/

dataoecd/36/36/39543399. pdf.

° Press Release, U.S. Food and Drug Admin., FDA Warns

Consumers about Counterfeit Drugs from Multiple Internet

Sellers (May 1, 2007), available at http://www.fda.gov/bbs/topics/

NEWS/2007/NEW01623.html.

© Intellectual Property Crimes: Are Proceeds from Counter-

feited Goods Funding Terrorism Before the H. Comm. on Intl

Relations, 108th Cong. 10-17 (2003) (public testimony of Ronald

K. Noble, Secretary-General of INTERPOL), available at

http://www. foreignaffairs. house. gov/archives/108/88392. pdf.

11

counterfeiting." He noted that Al Qaeda training

manuals seized in Afghanistan recommend the sale of

counterfeit goods as a source of terrorist financing

and that the 1993 World Trade Center bombing was

partially financed through the sale of counterfeit

goods.” Senator Bayh concluded that “we have a

compelling national security interest in redoubling

efforts to cut off these funding sources for terrorist

organizations.””

C. Sale of counterfeit products via the

Internet requires the participation of

the credit card companies and pre-

sents a growing counterfeiting model

The Internet has eliminated impediments to the

international distribution and sale of both legitimate

and illegitimate goods.“ Conventional distribution

models require importers, distributors and retailers

to deliver goods to consumers.” The Internet has

ushered in a new model where manufacturers sell

directly to consumers. Consumers order goods online,

“ Examining U.S. Government Enforcement of Intellectual

Property Rights Before the S. Comm. on the Judiciary, 110th

Cong. (2007) (statement of Sen. Evan Bayh), available at

http://judiciary.senate.gov/testimony.cfm?id=3020&wit_id=6760.

” Ed.

~ 2

** OECD, supra, at §3.53.

* Id. at §§2.33-2.54.

12

pay with a major credit card, and receive the product

within days via air freight.

The Internet is especially attractive to pirates

and counterfeiters because of the ease with which

they can conceal their true identities, the ability to

establish pirate websites’ anywhere in the world,

and the flexibility to quickly move to jurisdictions

where enforcement is lax." The enormous volume of

e-commerce sites allows counterfeits to evade detec-

tion.” Counterfeiters can reach a global audience

around the clock, and can effectively deceive consum-

ers with professional-looking websites and contrived

consumer experience ratings.” Small-quantity air

freight shipments evade detection by U.S. Customs

and Border Protection.” The “high profitability of

many counterfeiting and piracy activities which in

some cases exceeds the ‘profitability’ of illegal drug

trades, low risk of detection and relatively light

penalties have provided counterfeiters with an

attractive environment for the illegal activities.””

** Computer Crime and Intellectual Property Section,

supra, at 2.

’ Examples of counterfeit websites are not difficult to find.

An Internet search using almost any famous brand name will

reveal websites selling counterfeit products that accept major

credit cards.

’** OECD, supra, at §3.54.

:

” Id.

* Id. at §§3.63-3.64.

* OECD, supra, at §§3.77-3.88.

13

Intellectual property owner’s traditional enforcement

tools have limited effectiveness against this new and

growing threat.”

There is a false air of legitimacy in the illegal

trafficking of counterfeit goods on the Internet. Coun-

terfeiters create websites that mimic the brand

owner’s legitimate site. Familiar credit card logos are

a badge of legitimacy on the pirate sites. American

consumers shopping the Internet from the comfort of

their homes typically have no way of knowing

whether a given website is based in the United States

or a distant country, or whether it is authorized by

the brand owner.” Frequently, consumers are de-

ceived into purchasing counterfeit products with the

belief that they are genuine.” More disturbing, some

consumers may know or suspect the goods are coun-

terfeit, but are ambivalent to the illegality of the

transaction.” According to a recent survey by the U.S.

Chamber of Commerce and The Gallup Organization,

approximately one in five Americans have knowingly

purchased a product that they knew or suspected to

* «(Pllaintiff alleges that many direct infringers have no

physical presence in the United States. They operate from far-off

jurisdictions, where lawsuits are difficult to bring and remedies

impossible to enforce because the infringers can easily move

their operations to servers in other remote jurisdictions.” Perfect

10, 494 F.3d at 823 (Kozinski, J., dissenting).

* OECD, supra, at §§3.52-3.58.

* Id. at §2.20.

~ an

14

be counterfeit.” Consumers purchase counterfeit

products with their familiar credit cards, in the same

manner that they purchase genuine products, trust-

ing that the card will protect them from loss. .” Per-

fect 10, 494 F.3d at 817-18, n.14 (Kozinski, J.,

dissenting).

Credit card companies process payments for sales

indifferent to the legality of the transaction. The

Ninth Circuit majority conceded that “we must take

as true the allegations that [the credit card compa-

nies] lend their names and logos to the offending

websites and continue to allow their cards to be used

to purchase infringing images despite actual knowl-

edge of the infringement — and perhaps even bending

their association rules to do so.” Perfect 10, 494 F.3d

at 802. The credit card companies are complicit. As

Judge Kozinski correctly reasoned, “(t]he weak link in

the pirates’ nefarious scheme is their need to get paid;

. the [credit card companies] collect billions for

sellers of stolen merchandise; in a very real sense,

they profit from making piracy possible. I can see no

reason they should not be held responsible.” Jd. at

823 (Kozinski, J., dissenting).

S

“U.S. Chamber of Commerce & Gallup Consultancy,

COUNTERFEITING IN THE UNITED STATES: CONSUMER BEHAVIORS

AND ATTITUDES 8 (2007), available at http://www.thetruecosts.

org/portal/truecosts/resources/default (scroll down to survey).

15

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for writ of certiorari.

Respectfully submitted,

THOMAS R. FITZSIMONS

Counsel of Record

PAUL G. JUETTNER

LAURA R. WANEK

CHRISTOPHER J. MCGEEHAN

GREER, BURNS & CRAIN, LTD.

300 S. Wacker Drive

Suite 2500

Chicago, Illinois 60606

(312) 360-0080

Counsel for Amici Curiae

March 31, 2008