Federal Counterfeiting Laws (18 USC 2320)
You’re low on money, so you decide to sell purses to make a quick profit. Your purses aren’t Gucci purses, but they look similar and have the same logo. However, the quality isn’t as good. You sell the purses at a local swap meet. A month later, a customer tells you that her purse fell apart and she demands her money back. “All sales are final,” you respond. She then calls the police.
Later that day, police arrive at the swap meet to place you under arrest. You are being charged with the federal crime of trafficking in counterfeit goods or services, often referred to as counterfeiting.
Under Title 18 United States Code section 2320, it is unlawful for you to willfully and knowingly perform, attempt, or conspire to perform any of the following acts:
- traffic in goods or services and knowingly use a counterfeit mark on or in connection with such goods or services;
- traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive;
- traffic in goods or services knowing that such good or service is a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security; or
- traffic in a counterfeit drug.
Prosecution of Federal Counterfeiting (18 USC 2320)
In order for you to be found guilty of federal counterfeiting, the prosecution must prove all of the following beyond a reasonable doubt:
- You trafficked, attempted to traffic, or conspired to traffic in goods, services or pharmaceutical drugs;
- The goods, services or pharmaceutical drugs were counterfeit or unoriginal from those created by the trademark owner of these goods, services, or drugs;
- You knew the goods, services or pharmaceutical drugs were unoriginal or counterfeit in nature; AND
- You intended for the goods, services, or pharmaceutical drugs to be fraudulently passed as original, and for them to be distributed as such.
Sentencing and Punishment for Federal Counterfeiting
Under 18 USC 2320, counterfeiting is a federal offense. How you are punished will depend upon the circumstances of your case.
In general, you face a sentence of up to 10 years in federal prison and fines of up to $2 million if you are convicted of this crime. If it is your second or subsequent offense for federal counterfeiting, you face a fine of up $5 million and up to 20 years in prison.
If your act of counterfeiting caused serious bodily injury, you face up to 20 years in prison and a fine of up to $5 million. Your sentence can be increased to 25 years to life if your act of counterfeiting resulted in another person’s death.
Counterfeiting drugs or military goods or services is a more serious offense. If you are convicted of this crime, you face up to 20 years in prison and fines of up to $5 million. If this is your second or subsequent offense for this crime, you face up to 30 years in prison and a fine of up to $15 million.
Defenses to Federal Counterfeiting
A skilled federal criminal defense attorney can raise several defenses on your behalf. These include:
- The good, service or drug was not “counterfeit”– If the attached trademark was genuine, and the product itself was genuine, but just altered or repackaged after it was bought or distributed from the original manufacturer, you should not be found guilty of this crime.
- You had no knowledge that it was counterfeit– Knowledge may be assumed based on the quality of the products or services, the appearance of a counterfeit mark, etc., but it can be argued that based on the circumstances you had reasonable belief that the good, service or drug that you were selling was original.
- You had legal rights to the trademark– For example, if the original trademark owner has since lost these rights, and you can prove that you now hold the rights to this trademark, you should not be found guilty of this crime.
FAQs Regarding Federal Counterfeiting
What if the people who bought the items weren’t really “tricked” by the counterfeit mark?
It doesn’t matter whether or not the direct person who bought the item was tricked by the counterfeit mark. It’s enough that “members of purchasing public” would be likely to be confused, mistaken or deceived.
What if I didn’t actually sell, or even attempt to sell any of the counterfeit goods?
“Use,” can be inferred based on the surrounding circumstances, such as quantity of items. No actual “sale,” is required to show intent to traffic counterfeit goods.
What if I gave counterfeit items out to people, but didn’t actually receive anything for it in return?
The term “traffic,” in this context means: transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of. If it cannot be shown that you had intent to obtain a commercial advantage or a private financial gain, it may act as a defense to this federal offense.
Call the Federal Attorneys at Wallin & Klarich Today
If you or a loved one has been charged with federal counterfeiting, you need to contact an experienced federal criminal defense attorney immediately. At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing federal criminal charges for over 30 years. We can help you, too.
With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich federal criminal defense attorney available to help you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.