False Marking Statute of Limitations Applies to Each Instance of Marking

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.)