Plaintiff's motion to dismiss defendant's false marking counterclaim as barred by the statute of limitations was denied. The court rejected plaintiff's argument that "because [defendant] alleges that [plaintiff] began falsely marking more than five years ago, [defendant's] counterclaim is time barred. . . . Under 28 U.S.C. § 2462, a proceeding for enforcement of a penalty 'shall not be entertained unless commenced within five years from the date when the claim first accrued.' The false marking statute 'requires a fine to be imposed for every offense of marking any unpatented article.' . . . Thus, a new claim for false marking accrues and resets the limitations period each time an article is falsely marked. Accordingly, to the extent [defendant's] false marking claim is based on false markings that occurred prior to [five years before defendant filed its counterclaims], the claim is barred by the statute of limitations."
Seirus Innovative Accessories, Inc. v. Cabela's, Inc., 3-09-cv-00102 (CASD April 20, 2010, Order) (Huff, J.)