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

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.