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NY Penal Law § 165.71: Trademark Counterfeiting in the Third Degree

June 29, 2020 Federal Criminal Attorneys

It is not uncommon to see vendors peddling designer goods on city streets or in certain stores for prices that are far below the typical selling price of such products.  In general, this is because the products are not genuine, but they are designer knock-offs, or counterfeit. Even though the products may look very similar to the authentic items produced with the authorization of the true owner of the trademark, the products are usually produced using inferior materials and altered trademarks.  By law, the definition of the term “trademark” is an indicator that the property is owned by a specific person or company. In order to use a person’s or company’s trademark, you must have their permission to do so.  You could be prosecuted for trademark counterfeiting in the third degree under New York Penal Law section 165.71 if, with intent to deceive or defraud another person, or to evade a lawful restriction on the distribution of goods, you knowingly manufacture, distribute, sell or offer for sale items that have a counterfeit trademark.


For Example

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


Offenses that are Related

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


Possible Defenses

Under this statute, the prosecutor is obligated to demonstrate that you were indeed selling or distributing products with the knowledge that the trademark was counterfeit. If the products that you were selling or distributing are discovered to be carrying a fake trademark, but you did not, in fact, know that the trademark was counterfeit, then you may have a plausible defense against a trademark counterfeiting in the third degree charge.


The Sentence

Due to the fact that trademark counterfeiting in the third degree is categorized as a Class A misdemeanor, if you are convicted, you could be sent to county jail to serve time for up to one year.  On top of that, you may be ordered to pay a fine. Particularly if this is your first offense, then there is a good chance that the judge may decide to sentence you to a probation term of 3 years instead of sending you to jail.



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