New York Counterfeiting Charges Explained

With the increase of purchases through the internet, trademark counterfeit goods are estimated to account for 3.3% of all global commerce. For many people, visiting New York has been synonymous with getting a counterfeit bag from Canal Street in Chinatown. Although it is not a crime to purchase counterfeit goods, it is a crime to manufacture, sell or re-sell goods that bear counterfeit trademarks.

New York has three different Trademark Counterfeit charges. Specifically, these charges are:

New York Trademark Counterfeiting in the First Degree
New York Trademark Counterfeiting in the Second Degree
New York Trademark Counterfeiting in the Third Degree

The difference in these New York Counterfeiting charges is explained below.

New York Trademark Counterfeiting in the Third Degree

The least serious of the New York Trademark Counterfeiting charges is New York Trademark Counterfeiting in the Third Degree. Under New York Penal Law Section 165.71, a person is guilty of Trademark Counterfeiting in the Third Degree when:

With intent to deceive or defraud some other person, OR
With intent to evade lawful restriction on sale, resale, offering for sale or distribution of goods,
S/he manufactures, sells or offers for sale goods which bear a counterfeit trademark, OR
Possesses a trademark knowing it to be counterfeit to attach it to any goods.

Penalties and Sentencing for New York Trademark Counterfeiting in the Third Degree

This New York Counterfeiting charge is a Class “A” Misdemeanor. As such, it is punishable by up to 1 year in prison. Importantly, the following sentences are possible for Trademark Counterfeiting in the Third Degree:

Conditional Discharge
Unconditional Discharge
Time Served (even if only the time spent in was for arrest processing)
Probation (up to 3 years)

New York Trademark Counterfeiting in the Second Degree

Under New York Penal Law Section 165.72, a person is guilty of Counterfeiting in the Second Degree when:

S/he commits Trademark Counterfeiting in the Third Degree (Penal Law 165.71), AND
The retail value of all such goods bearing counterfeit trademarks exceeds $1,000.

Penalties and Sentencing for Trademark Counterfeiting

Trademark Counterfeiting in the Second Degree is a Class “E” Non-violent Felony. As such, this New York Trademark Counterfeiting charge is punishable by up to 1 1/3 to 4 years in prison. However, the following are potential sentences for this charge:

Probation (3, 4, or 5 years);
Conditional Discharge;
Unconditional Discharge;
Incarceration (Determinate sentence of 1 year or less).

New York Trademark Counterfeiting in the First Degree

New York Trademark Counterfeiting in the First Degree is the most serious of New York Counterfeiting charges. The elements of this charge are:

S/he commits Trademark Counterfeiting in the Third Degree (Penal Law 165.71), AND
The retail value of all such goods bearing counterfeit trademarks exceeds $100,000.

Penalties and Sentencing for New York in the First Degree

New York Trademark Counterfeiting in the First Degree is a Class “C” Non-Violent Felony. This charge is punishable by up to 5 to 15 years in prison. However, these are also possible sentences:

Determinate sentence of 1 – 2 years
Probation (3, 4, 5 years)

Frequently Asked Questions Regarding Trademark Counterfeiting Charges

The following are some of the frequently asked questions regarding New York Counterfeiting charges.

1. Does Trademark Counterfeiting Result in a Civil Case or a Criminal Case?

Trademark Counterfeiting can turn into criminal charges or a civil case being filed against you. Civil cases are brought under under Lanham Act. Criminal cases can be brought under either state law or federal law.

2. Are Trademark Counterfeiting Cases Prosecuted Under New York State or Federal Law?

Both. Trademark Counterfeiting can be prosecuted on the state level – through the above-described criminal statutes. Additionally, trademark counterfeiting criminal charges can also be brought in federal court.

Trademark Counterfeiting Act of 1984, made trademark counterfeiting a federal criminal offense. This offense is codified in 18 U.S.C. § 2320, and makes it a felony to:

Intentionally traffic or attempt to traffic
Goods or services, AND
Knowingly uses a counterfeit mark
In connection with such goods or services.

3. What is the Statute of Limitations on New York Trademark Counterfeiting Cases?

The statute of limitations on New York Trademark Counterfeiting case depends on the degree of the crime charges or that could potentially be charged. New York Trademark Counterfeiting Statutes of Limitation are:

Charge	New York Statute of Limitations
Trademark Counterfeiting in the First Degree	5 years
Trademark Counterfeiting in the Second Degree	5 years
Trademark Counterfeiting in the Third Degree	2 years

New York Trademark Counterfeiting Statute of Limitation

However, it is important to note that the statute of limitations can be tolled or extended past the above-listed time period. Some reasons for the tolling on the statute of limitations for New York counterfeiting cases are:

Continuous crimes that are part of the same scheme of the same plan;
Intentionally leaving the jurisdiction and intentionally avoiding arrest or apprehension;
Executive orders suspending or modifying the statute of limitations.

4. What happens to the counterfeit items that were seized?

There is a provision under New York Penal Law Section 165.74, that allows a judge to conduct a hearing to determine whether there is probable cause to believe that the foods were manufactured, sold, offered for sale or distributed in violation of the New York Trademark Counterfeiting statutes. If the judge finds probable cause, the goods can be retained as evidence pending trial. If the defendant is convicted at trial of New York Trademark Counterfeiting charges, then the seized goods can be destroyed or donated.

Similarly, under federal law (Title 18 U.S.C. Section 2320(b)), the prosecution is unable to obtain an order from the court authorizing the destruction of the articles bearing counterfeit trade marks. The Government has to establish to the judge by a preponderance of evidence that the items bear counterfeit marks.

5. What are some of the High Profile New York Trademark Counterfeiting Cases?

New York Trademark Counterfeiting cases frequently make the news. Some of the high profile Trademark Counterfeiting cases are:

Contact Top Rated New York Counterfeiting Attorneys

If you or a loved one have been arrested for Trademark Counterfeiting, you need top rated Counterfeiting Attorneys by your side. These cases can result in a felony record, significant jail time and hefty financial penalties. Please call us at 212-729-9494 or contact us today for your free initial consultation.