New York Penal Law § 165.72 – Trademark Counterfeiting in the Second Degree

Trademark Counterfeiting is a crime that prohibits the creation or sale of goods that have a fake, or counterfeit trademark. There are three “degrees” of Trademark Counterfeiting: first, second and third. Trademark Counterfeiting in the Second Degree is a Class E felony that applies when the value of the goods bearing the counterfeit trademark exceeds $1,000.

The United States Constitution provides that it is the government’s burden to prove any criminal case beyond a reasonable doubt, and Trademark Counterfeiting in the Third Degree is no exception. To do this, the prosecution must prove every element of a crime.

The elements of Trademark Counterfeiting in the Second 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; and
4. The total value of all goods containing the counterfeit trademark exceeds $1,000.

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

• A person operates a street stand selling thousands of dollars' worth of fake handbags that bear counterfeit trademarks.
• A person contracts with a factory overseas to manufacture hundreds of sunglasses that look just like designer sunglasses but have counterfeit trademarks and are made of inferior materials.

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 Second Degree, the following are the most common related crimes:

• Trademark Counterfeiting in the Third Degree – NY Penal Law § 165.71
• Trademark Counterfeiting in the First Degree – NY Penal Law § 165.73
• Criminal Simulation – NY Penal Law § 140.45
• 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
• Criminal Possession of Forgery Devices – NY Penal Law § 170.40

There are several defenses to Trademark Counterfeiting in the Second 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 thought that the trademarks on the objects you were selling or marketing for sale were legitimate.
• You did not have any intention of selling the goods or applying the trademark 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 Second Degree is a Class E felony. In New York, Class E felonies carry a maximum sentence of up to 4 years in jail and a fine of up to $5,000. The judge also has the discretion to sentence you to probation instead of jail time.

If you were recently arrested and charged with counterfeiting, your decision of which attorney you choose to represent you may be one of the most important decisions you’ll make regarding your case. With decades of experience successfully representing clients in all types of misdemeanor and felony criminal cases, including counterfeit crimes, the lawyers at Tilem & Associates know what it will take to ensure your recent arrest has as little impact on your future as possible. 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.