Intellectual Property

In a globe still loaded with excessive pain, the power of songs to unite and uplift must never ever be ignored. My idea, as a result, is to watch this performance before, or perhaps as, you read this column. After that watch it once again. Among one of the most haunting songs of all time, covered and performed stay in front of an adoring group by an artist at the peak of his powers– a ray of appeal in the dark of winter season. Strengthened by that wonderful diversion, we can currently discuss the most-recent instance of the intriguing points that take place when IP litigation intersects with celeb. I am referring, certainly, to the widely reported apology by c and w super star, Luke Combs, to a follower named Nicol Harness. Why? Since– unbeknownst to Combs– she had actually been trapped in a mass-defendant anti-counterfeiting legal action filed by Combs’s legal team, which had actually led to a default judgment of $250,000 against her based upon the sale of some home-made mugs that she sold on Amazon to other Combs fans.

As is common in these kinds of anti-counterfeiting instances, things relocated very rapidly. Combs was represented by Vogt IP, which declares a “100% success rate; injunction provided in every instance” on its site. The situation was submitted, calling 45 offenders, all by their on the internet store “handles,” in early October of this year. By November 15, the area court judge had gotten in default last judgment, consisting of “legal damages from each of the Defaulting Defendants in the quantity of two hundred fifty thousand bucks ($ 250,000) for unyielding use counterfeit Luke Combs Trademarks on products offered via at least the Defendant Internet Stores.” The default order additionally advised the on the internet store fronts on which the accused products were offered, (e.g. Amazon and Walmart’s third-party selling platforms), to permanently urge the vendors and to launch the funds they had previously taken from those vendors to Combs in fulfillment of the judgment.

For a home-based vendor like Harness, the effects of the judgment were devastating. Local information media began reporting on her predicament, consisting of the reality that the supposed emailed notice of the claim had entered into a spam folder. It was just her efforts to obtain her $5,500 confiscated by Amazon released that exposed the fact that she was prosecuting versus among one of the most prominent musicians in the United States. To his debt, Combs learnt about her recently and took instant action. First, he launched an Instagram apology to Use to his virtually 6 million followers. That very same day, a notice of termination was gone into against Harness’ shop and two other defendants. Finally, Combs took it upon himself to assist Use monetarily, by sending her double what Amazon took ($ 11,000) and additionally offering an official stemless glass on his web site, with a pledge that “NET PROCEEDS FROM THIS ITEM WILL CERTAINLY BE DONATED TO NICOL HARNESS AND HER FAMILY MEMBERS.” (Yes, I bought one. I am a fool for IP souvenirs and for the targets of IP bullying, also when it was taken care of in good spirit and form by the perpetrator.).

Overall, plenty of components of a feel-good holiday tale have been reported on about these occasions. At the same time, I remain in contract with the exhortation on X by Northeastern Professor Alexandra Roberts that this legend need to influence us as IP experts to “deal with some of the other probs that got us right here as well tho.” Those issues include the question of whether courts are applying enough roughness right into guaranteeing that service is effectively made in mass anti-counterfeiting actions, for one. There is likewise the inquiry of whether we as an IP area should be doing more to aid, whether on a done for free basis or otherwise, accused shop owners who obtain caught up in these types of instances. These are challenging questions to answer, naturally, particularly for somebody like myself that has composed thoroughly on the scourge of counterfeiting and the need for reliable policing of this international trouble. But possibly we should be doing even more to think about the due process civil liberties, particularly of Americans that are not causing considerable material injury to the IP proprietor, in these scenarios.

What may trouble particular folks one of the most around this scenario, specifically because of the considerable protection of a similar trouble in the patent context lately, is Combs’s admission that he was uninformed that he had filed a claim against Harness to begin with. I am unsure that hysterics concerning this fact are necessitated, considering the obstacle of policing sophisticated counterfeiters. Neither am I suggesting that anyone did anything incorrect in this scenario, specifically where the legal process was delegated by the customer to guidance with substantial experience and a track record of success in these kinds of cases. Yet, some will probably be crucial of the method that brought about the end result, as we saw with the current statements by Judge Connolly in the license context. On the one hand, there need to be nothing incorrect with an IP proprietor advising his counsel to police violation any place advise discovers it and develops a good-faith basis for taking lawsuit versus that violation. Under that line of idea, we wouldn’t expect a busy company owner, or a celebrity, to end up being a private detective assessing all evidence of counterfeiting– much more so when that counterfeiting is occurring over anonymous on the internet stores.

On the other hand, it is distasteful in the eyes of some when you have a situation where legal representatives are acting on behalf of less-than-fully educated customers, as obviously taken place below and in the IP Side circumstance. While it may be hard to locate the appropriate equilibrium on this factor, I assume that IP proprietors concerned regarding finding themselves in a circumstance where they are lambasted as IP harasses need to insist on accepting every accused that their guidance suggests suing. And advise in these sorts of matters should also ensure that their clients comprehend the threat that particular accuseds might wind up being sympathetic targets– where the price of pursuing them, specifically from a reputational end, exceeds the value of what there is to recuperate from them.

Ultimately, my biggest hope in these scenarios is that the media protection leads interested visitors down the path of boosting their IP proficiency. It does not matter whether you favor IP owners like Combs taking aggressive activity versus counterfeiters or are sympathetic to under-resourced offenders like Harness. In fact, you can feel for both sides in this scenario, while taking comfort in the truth that all seems to have finished well. (Perhaps as you take a sip of a warm beverage from your Luke Combs stemless glass.) In any case, we must all be rooting for increased IP proficiency, as well as the publicity causing even more conversation of common-sense renovations to the way mass anti-counterfeiting claims are pursued.

Please feel free to send comments or questions to me at or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at or follow him on Twitter: @gkroub.