The Lanham Act defines "counterfeit" as "a spurious mark which is identical with, or substantially indistinguishable from, a registered mark." (15 U.S.C. § 1127.) "The key question presented," as the Ninth Circuit succinctly framed it below, "is whether a trade-mark counterfeiting claim re quires a likelihood of confusion." App. 2. The Ninth Circuit concluded, "[w]e hold that the plain language of the statute requires a likelihood of confusion for a counterfeit claim." ( Id.)

1. Whether trademark counterfeiting occurs when the identical trademark recited in the federal trademark re gistration is used on the identical type of goods recited in the federal trademark registration in spite of the counterfeiting's attempt to avoid liability by changing th e appearance of the packaging.

2. Whether the Supreme Court should resolve the split in the circuits that was cre-ated when the Ninth Circuit in this case rejected the presumption of counterfeiting when a counterfeiter uses the identical trademark recited in the federal trademark registration on the identical type of goods recited in the federal trade-mark registration.

3. When the statutory requirements for counterfeiting of a registered word mark has been met by showing that an accused mark is "spurious" because it is (a) "iden-tical with, or substantially indistinguishable from" the registered mark and (b) applied to the same goods listed in the trademark registration, whether the Ninth Circuit's extra-textual requirement that counterfeiting also requires a likelihood of confusion between the counterfeit product and the genuine product is a misconstruction of the statute.

Whether trademark counterfeiting requires a likelihood of confusion