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What is a counterfeit mark charge? It is the manufacturing, possessing to sell or selling a counterfeit trademark that is registered with the U.S. Patent and Trademark Office. The type of items normally connected with this charge are:
• Clothing Material
And the brands normally counterfeited are:
• Louis Vuitton
• Michael Kors
Typically, the evidence is gathered by an undercover operation originating from the retailers through private investigators that they hire.
The investigation usually starts with the private investigator hired by the retailer replying to an ad they see on craigslist or other sites from a buyer selling merchandise. The investigator poses as a buyer and buys a small amount of goods and asks if it’s possible to buy a much larger amount in a few weeks. The seller is unaware that they are being videotaped as the buyers are inconspicuous and the seller doesn’t suspect a sting operation. The investigator will then file a report with the local police notifying of the next scheduled purchased from the sellers. At the scheduled date, the sellers are met with armed police with a search warrant and the sellers are arrested for possessing counterfeit marks for sale.
The government is required to prove each fact below without a reasonable doubt:
• The seller was in possession of counterfeit goods
• The seller manufactured, had the intent to sell or did sell counterfeit goods
• The goods contain a seal registered with the U.S. Patent & Trademark Office
Counterfeit Mark Charge Legal Defenses
Lack of Possession – The government needs to prove that the seller had possession of the counterfeited items which can either mean that the seller had them in their vehicle or on their person or constructive possession which means the seller had the right to exert control over the goods. This can become an issue when there are two sellers in possession of the items. This law is ambiguously written and an attorney can use it to argue that the seller lacked possession.
Mere Presence – The fact that the seller was at the scene of the sale does not mean they can be arrested as part of the crime. If the seller was there within the presence of the counterfeit goods, they cannot be convicted of the charge. For example, an individual was at a friend’s house when the police arrive and find a box of counterfeit wallets. Since the individual was just in the house and there is no evidence to connect the individual with the counterfeit items, the individual is not guilty of the charge. This includes the fact that the individual knew of that the counterfeit items were in the home but are still not connected to them.
Lack of Intent to Sell – The government must prove the individual was planning on selling the counterfeit goods based on the following factors:
• The internet ad that the seller placed
• Any texts conversations or recorded phone calls
• Selling the goods for far below retail value
• Any incriminating statements or confessions to the police
• The number of items the seller has in their collection
• The amount of money the seller has is consistent with a street sale
Authenticity – A counterfeit goods expert is called to verify that they are actually counterfeit and once this verification is received, the police will formally arrest the seller. If the expert has a hard time telling the difference though, it can be argued that the seller was unaware as well.
No Registered Seal – The items are not considered counterfeit if they do not contain a seal and it is not illegal to sell items that are significantly similar to one another that do not have the seal.
The penalty will depend on the circumstances of the operation and can be charged as either a misdemeanor or as a felony. If the total number of goods is less than 1,000, the seller is looking at a misdemeanor that has a fine of up to $10,000 and a one year jail term.
If the number of goods is over 1,000 or if you have a prior offense, then you can be charged with a felony of a fine up to $10,000 and up to three years in jail.
If you are facing a counterfeit mark charge, contact our experienced attorneys to help you through the court process. Our knowledgeable attorneys will review the charges and determine the best defense to get the most successful outcome for your case.