New York Penal Law § 165.71 – Trademark Counterfeiting in the Third Degree

Trademark Counterfeiting in the Third Degree is a crime that prohibits the creation or sale of goods that have a fake, or counterfeit trademark. Trademark Counterfeiting in the Third Degree is a Class A misdemeanor. Over the years luxury brands such as Rolex, Gucci and Nike have gotten more protective of their brands and the police and law enforcement are aggressive about arresting those who sell counterfeit items.

Under the United States Constitution, it is the government’s burden to prove a criminal case beyond a reasonable doubt. To do this, the prosecution must prove every element of a crime.

The elements of Trademark Counterfeiting in the Third Degree are:

1. The defendant manufactured, sold, or offered for sale goods that had a counterfeit trademark; or
2. The defendant knowingly possessed a counterfeit trademark for the purpose of placing the trademark on goods; and
3. The defendant did so with the intent to deceive or defraud some other person or to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods.

Some of the most commonly seen examples of Trademark Counterfeiting in the Third Degree include the following:

• A person buys fake “Coach” bags that bear a counterfeit trademark to sell on the streets of New York City.
• A person creates an image that is identical to the “Rolex” logo, intending to attach the marking to low-quality look-alike watches.
• A person sells unauthorized videos of newly released movies that bear the production studio's name and logo.

While every case is different, prosecutors often bring several charges against a defendant based on a single course of conduct. In the case of Trademark Counterfeiting in the Third Degree, the following are the most common related crimes:

• Trademark Counterfeiting in the Second Degree – NY Penal Law § 165.72
• Trademark Counterfeiting in the First Degree – NY Penal Law § 165.73
• Criminal Possession of Stolen Property in the Third Degree – NY Penal Law § 165.50
• Criminal Possession of Stolen Property in the Fourth Degree – NY Penal Law § 165.45
• Criminal Possession of Stolen Property in the Fifth Degree – NY Penal Law § 165.40
• Petit Larceny – New York Penal Law § 155.25
• Grand Larceny in the Third Degree – NY Penal Law § 155.35

There are several defenses to Trademark Counterfeiting in the Third Degree that can either reduce your sentencing exposure or result in the prosecution withdrawing the case against you or the jury returning a “not guilty” verdict. The most common defenses include the following:

• You were unaware that the trademark in your possession was counterfeit.
• You lacked the intent to sell the trademark or apply it to a good.
• You were not selling the object bearing the trademark as a “real” version (i.e., you were marketing the objects as “fakes).

Trademark Counterfeiting in the Third Degree is a Class A misdemeanor. In New York, Class A misdemeanors carry a maximum sentence of up to 1 year in jail and a fine of up to $1,000. The judge also has the discretion to sentence you to probation instead of jail time.

If you were recently arrested and charged with counterfeiting, the skilled New York criminal defense lawyers at Tilem & Associates are here to help. With decades of experience successfully representing clients in all types of misdemeanor and felony criminal cases, we have the knowledge, dedication and skills needed to help you reach the result you’re looking for.

We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.