NY Penal Law § 165.71: Trademark counterfeiting in the third degree

It is not uncommon to see vendors selling designer products on the streets or in stores for a price that is well below such product's typical selling price. This is generally because the products are not genuine, but counterfeit. Even though the products may look similar to the products produced with the authorization of the true owner of the trademark, the products are typically made using inferior materials and altered trademarks. A trademark is in indicator that property is owned by a specific person or company. In order to use a trademark you must have permission to do so. Under New York Penal Law section 165.71, you could be prosecuted for trademark counterfeiting in the third degree if with intent to deceive or defraud another person or evade a lawful restriction on the distribution of goods, you knowingly manufacture, distribute, sell or offer for sale goods that have a counterfeit trademark.

Example

In the case of People v. Rivera, 987 N.Y.S.2d 570 (N.Y. Crim. Ct., 2014), police officers observed defendant Dorian Rivera displaying 30 DVDs for sale and showing them to a potential customer. Rivera did not have a license to sell such merchandise. The DVDs had counterfeit trademarks used and registered by Disney, Universal, Paramount 20th Century Fox movie studios. As a result Rivera was charged with several offenses including trademark counterfeiting in the third degree.

1. Failure to Disclose the Origin of a Recording in the Second Degree: New York Penal Law section 275.35

Under the statute the prosecutor is required to prove that you were selling or distributing products knowing that the trademark was counterfeit. If the products that you were selling or distributing do indeed have a fake trademark, but you did not in fact know that, then you may have a defense to a trademark counterfeiting in the third degree charge.

Because trademark counterfeiting in the third degree is a Class A misdemeanor if you are convicted you could be sent to county jail for up to one year, and you may be required to pay a fine. Particularly if this is your first offense, there is a good chance that the judge may choose to sentence you to a probation term of 3 years instead of sending you to prison.

A person is guilty of trademark counterfeiting in the third degree when, with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods.

Even though trademark counterfeiting in the third degree is a misdemeanor and not a felony it is still important to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with crimes such as harassment, criminal trespass, criminal mischief, assault, and reckless endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of crimes in the following locations: