Trademark counterfeiting is a major problem in New York, particularly in New York City. A common site on the streets of the Big Apple is that of vendors hawking designer products that are priced well below the actual market price for these items. This is done because the products being sold are violating trademarks and are counterfeit.

The New York penal code maintains a law that addresses the use of counterfeit trademarks. The objective is to protect the property rights of those individuals and entities that own certain trademarks.

Elements of Trademark Counterfeiting in the Third Degree

The elements of the crime of trademark counterfeiting in the third degree are simple. A person can be prosecuted for crime of trademark counterfeiting in the third degree if he or she knowingly manufactures, distributes, sells, or offers for sale goods that bear a counterfeit trademark. A person knowingly needs to understand that a trademark on a product is counterfeit and makes the sale anyway.

The person who purchases a counterfeit piece of property would not face prosecution under this law. Only the person who sole the item, and had knowledge that it was counterfeit, can be prosecuted under the trademark counterfeiting in the third degree law.

Example of Trademark Counterfeiting in the Third Degree

An example of the crime of trademark counterfeiting in the third degree involves a man who has a cart set up on a sidewalk in New York City. On the cart, the man sells purses that bear fake designed logos and trademarks. He markets the purses as being authentic, even though he knows that the trademark on the products are counterfeit or fake.

Another example of the crime of trademark counterfeiting in the third degree involves a woman who owns a hair salon. In the salon, she sells colognes of different types, including high-end designer products.

In reality, the designer colognes are counterfeit items. If the owner of the salon was aware of the trademark counterfeiting, she could be prosecuted for trademark counterfeiting in the third degree.

Sentence for Trademark Counterfeiting in the Third Degree

The crime of trademark counterfeiting in the third degree is classified as a class A misdemeanor. As a result, a person convicted of this crime faces the prospect of a jail term of one year. In the alternative, a person found guilty of this crime could end up sentenced to a term of probation of three years. In addition, a person found guilty of trademark counterfeiting in the third degree can face a fine as well. Both a term of incarceration and fine can be imposed in the same case.

Defenses to Trademark Counterfeiting in the Third Degree

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A possible defense to trademark counterfeiting in the third degree is that the person who sold a fake product was not aware of the counterfeit trademark or logo. A NYC criminal attorney can mount this type of defense in a case involving a charge of trademark counterfeiting in the third degree.

Legal Scenario: What Would You Do?

Scenario

You were arrested at your retail kiosk in Manhattan after police discovered you were selling handbags bearing the Gucci and Louis Vuitton logos that turned out to be counterfeit. The officers seized over 200 items from your inventory and charged you with trademark counterfeiting in the third degree.

What does a trademark counterfeiting charge in the third degree mean for me, and what kind of penalties am I facing?

Attorney's Answer

Under New York Penal Law 165.71, trademark counterfeiting in the third degree is a Class A misdemeanor, which means you could face up to one year in jail, three years of probation, and fines. The prosecution must prove that you knowingly manufactured, distributed, or sold goods bearing a counterfeit trademark without the authorization of the trademark owner. We can examine whether you had actual knowledge that the items were counterfeit, whether the trademarks qualify as registered marks under the statute, and whether law enforcement followed proper procedures during the seizure. There are strong defense strategies available, including challenging the chain of custody of the seized goods and questioning whether the marks are truly identical to registered trademarks as the law requires.

This is general information only. Contact us for advice specific to your situation.

Another defense would be that the trademark is not counterfeit. For example, if a product looked like a designer product, but was not actually marketed as being authentic, that could be a defense to a trademark counterfeiting in the third degree charge.

A criminal defense attorney will schedule an initial consultation with a prospective client. During an initial meeting, legal counsel will provide a evaluation of a prospective client’s trademark counterfeiting in the third degree case. The evaluation will include an examination of possible defenses in a particular case. As a general rule, a New York criminal attorney does not charge a fee for an initial consultation in a trademark counterfeiting in the third degree case.