New York Penal Law § 165.73 – Trademark Counterfeiting in the First 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 First Degree is the most serious of these offenses and applies when the value of the goods bearing the counterfeit trademark exceeds $100,000. Trademark Counterfeiting in the 1st Degree is a Class C felony.

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 First 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 $100,000.

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

• A street vendor deals in counterfeit DVDs, all of which bear the names and logos of the production company, passing them off as “official versions.”
• A retail store obtains fake watches that look like Rolex watches and bear the “Rolex” crown logo but are made using lower-quality materials.

Of course, in either of these situations, the value of the good would need to exceed $100,000. If the value was less than $100,000 but more than $1,000, the person could be charged with Trademark Counterfeiting in the Second Degree. And if the value was less than $1,000, they could be charged with Trademark Counterfeiting in the Third Degree.

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

• Trademark Counterfeiting in the Third Degree – NY Penal Law § 165.71
• Trademark Counterfeiting in the Second Degree – NY Penal Law § 165.72
• Criminal Simulation – NY Penal Law § 140.45
• Criminal Possession of Stolen Property in the Second Degree – NY Penal Law § 165.52
• 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 Forgery Devices – NY Penal Law § 170.40

There are various defenses to Trademark Counterfeiting in the First 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. Defenses are also useful in negotiating with prosecutors in hopes of securing a favorable plea agreement. The most common defenses include the following:

• You did not know that the goods you were selling displayed a counterfeit trademark.
• While the goods in your possession displayed a counterfeit trademark, you were not selling them or distributing them.
• You were not selling the objects bearing the counterfeit trademarks as authentic (i.e., you were marketing the objects as “fakes”).

Trademark Counterfeiting in the First Degree is a Class C felony. In New York, Class C felonies carry a maximum sentence of up to 15 years in jail and a fine of up to $15,000.

If you have an upcoming court date for a counterfeiting offense, don’t put your fate in the hands of an attorney who hasn’t handled this type of case before. At Tilem & Associates, our dedicated team of New York counterfeiting lawyers has decades of experience defending clients charged with these serious crimes. 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.