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The Littlest Counterfeiter

Just in time for Valentine's Day, Kay Jewelers is running a 15-second spot in which an adorable little moppet turns to counterfeiting in order to impress his equally tiny girlfriend:


If this were a public service announcement rather than a jewelry commercial, the next scene might involve federal agents jumping out from the bushes next to little Mandy's front door and arresting young Charlie for his crime of passion -- or at least our besotted protagonist going home to find a C&D letter from the nice lawyers at Kay Jewelers.

But would Charlie have a defense?

If the charges involved criminal counterfeiting, Charlie might argue that his lovingly handwritten "Kay" trademark was neither "identical with" nor "substantially indistinguishable from" the real trademark.  Moreover, he was arguably not trafficking in counterfeit goods -- unless Mandy's kiss could be construed as valuable consideration for the delivery.

In the realm of civil offenses, Charlie might have a more difficult time attempting to prove that his trademark did not create a "likelihood of confusion."  Same name, same type of packaging, same category of product -- how much does it matter that Kay Jewelers usually goes with commercial printing over crayon?  Perhaps a survey of Mandy and her friends would be in order here.

As for copyright, Kay can certainly protect its original jewelry designs under U.S. law -- but we have no evidence at present that Charlie's paper-and-glitter heart pendant was substantially similar to Kay's diamond baubles. 

So what will be the fate of our little Charlie?  The young lad's life has clearly reached a crossroads.  He may grow up to be a successful jewelry designer, inspired by the material evidence of his parents' affection for one another and the memory of his first love.  If he learns the wrong lesson, however, he may one day find himself in court, accused of trademark infringement or worse.

Whether Charlie's ending proves happy or tragic, Kay Jewelers has certainly captured a moment -- and planted the seed of a Cupid-worthy drama.

Maybe it would be safer to just go with flowers.