The United States Court of Appeals for the Third Circuit determined that “use” with in the context of Section 2320(a) of the Trademark Laws does not require active employment of a counterfeit mark by displaying or offering an item displaying the mark for sale. United States of America v. Mamadou Diallo, Case No. 07-3641 (3rd Cir., July 31, 2009) (Smith, Circuit J.) (Pollak, Dist. J., sitting by designation, concurring).

In 2005, a Pennsylvania state trooper stopped Diallo’s van because the license plate was not illuminated. During the stop, the state trooper notice a number of sealed plastics bags. When asked what was in the bags, Diallo responded that the bags contained clothes. On inspection, the trooper learned in the bags were stuffed with handbags displaying the Louis Vuitton “LV” mark. Diallo admitted the bags were his and produced a business license from Indianapolis. Despite this, the trooper arrested Diallo.

Diallo was indicted for trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a). At trial Diallo argued that based on the Supreme Court’s interpretation of the word “use” in 18 U.S.C. § 924(c) in United States v. Bailey the jury had to find beyond a reasonable doubt that he actively employed the counterfeit mark on or in connection with the handbags by displaying or offering them for sale. He claimed that because the handbags were sealed in bags in the back of his van they had not been displayed or offered for sale.

The government argued that “use begins when [Diallo] bought them in New York, carried them along the highway for purposes of using them at his commercial venture to sell.” The district court’s instruction to the jury did not include a definition for “use.” During deliberations, the jury questioned the court about the meaning of “use.” After considering arguments from counsel on both sides, the court distinguished Bailey and instructed the jury using dictionary definitions that “use” means “[t]o make use of, to put into action or convert to one’s service, to avail oneself of, to have recourse to or enjoyment of, to employ.” After a short deliberation, the jury found Diallo guilty. Diallo appealed.

The appeal hinged on the meaning of the word “use” in § 2320(a), in which the statue failed to define. The Third Circuit explained that “the act of using related to the counterfeit mark,” thus distinguished Bailey which described more than one type of “use.” The court determined that it was unnecessary to restrict the meaning of the expansive term “uses” in § 2320 as the Supreme Court did in Bailey. In the court’s view, “an ordinary and natural reading of ‘uses’ gives effect to Congress’s intent ‘to control and prevent commercial counterfeiting’ by reaching a stream of illegal commerce and not simply its point of sale.” The court determined that the district court’s instruction on this point it was “reasonable and normal” and that the jury charge, taken as a whole, accurately submitted the issues to the jury.