Penal Code § 350 PC makes it a crime to manufacture, sell, or possess for sale, any counterfeit trademarks. In simpler terms, the statute prohibits the manufacture and sale of fake branded products or knock-off versions of trademarked items.
The offense is generally treated as a misdemeanor but can be charged as a felony if the number of counterfeit goods exceeds 1,000 units or the value of the goods exceeds $950.
Examples
- selling cheap purses at a higher price by affixing famous logos on them.
- making sunglasses and labeling them with brand names.
- storing counterfeit items in a container with the intent to sell them at a flea market.
Defenses
Criminal defense lawyers draw upon several legal strategies to challenge criminal charges under this statute. A few common ones include showing that:
- the defendant did not know that an item was a knock-off,
- the defendant merely possessed a counterfeit good with no intent to sell it, and/or
- law enforcement conducted an unlawful search and seizure.
Penalties
Depending on the facts of the case, a district attorney or prosecutor can charge a violation of California Penal Code Section 350 as either a misdemeanor or a felony.
If charged as a misdemeanor, the crime is punishable by custody in county jail for up to one year.
If charged as a felony, the offense can lead to a state prison term of up to three years.
Our California criminal defense attorneys will highlight the following in this article:
- 1. How does California law define “making or selling counterfeit goods”?
- 2. Are there legal defenses to PC 350 charges?
- 3. What are the penalties?
- 4. Are there related offenses?
Penal Code 350 PC makes it a crime to manufacture, sell, or possess for sale, any counterfeit trademarks.
1. How does California law define “making or selling counterfeit goods”?
California’s criminal laws say that people are guilty of making or selling counterfeit goods if they manufacture, sell, or knowingly possess for sale, any counterfeit mark.1
A defendant in these cases can be either a person or a business entity.
A “counterfeit mark” means a fake trademark/brand that is identical with, or confusingly similar to, a mark that is registered with either:
Note that one does not violate this criminal law by simply possessing counterfeit goods. A person must possess the goods with the intent to sell them.
2. Are there legal defenses to PC 350 charges?
People facing counterfeiting charges under this statute have the right to challenge them with a legal defense. Three common defenses include accused people showing that:
- they did not know a good was a counterfeit.
- they merely possessed a counterfeit good.
- police conducted an unlawful search and seizure.
2.1. No knowledge
It is an acceptable defense to this crime if a defendant can show that he/she did not know that a particular good was a fake. The defense is often referred to as a “mistake of fact” defense.
2.2. Mere Possession
As to the possession of a counterfeit good, recall that people are only guilty under this statute if they possessed the good with the intent to sell it. This means it is always a defense for defendants to show that while they may have had a counterfeit item, they did not plan on selling it.
2.3. Unlawful search and seizure
A popular defense in these types of criminal cases is for defendants to show that the police officers gathered evidence of counterfeit items by means of an unlawful search or seizure. For example, maybe law enforcement:
- entered a store without a valid California search warrant, or
- searched outside the area covered by a warrant.
A violation of this statute can result in a fine and/or jail time.
3. What are the penalties?
The penalties for manufacturing or selling counterfeit marks in California depend on the number and value of the counterfeit goods involved.
If the value of goods involved is under $950 and there are less than 1,000 units, then the crime is charged as a misdemeanor.3
If the value of goods involved is over $950 or the crime involves over 1,000 units, then the offense is a wobbler. A prosecutor can charge a wobbler as either a misdemeanor or a felony.4
A misdemeanor conviction under this law is punishable by custody in county jail for up to one year.
A felony conviction is punishable by up to three years in state prison.
The above penalties will increase if a defendant has a prior conviction under this law.
4. Are there related offenses?
There are three crimes related to making or selling counterfeit goods. These are:
- forged or counterfeit driver’s license – PC 470a,
- receiving stolen property – PC 496, and
- theft by false pretenses – PC 532.
4.1. Forged or counterfeit driver’s license – PC 470a
Per Penal Code 470a PC, forged or counterfeit driver’s license is the crime where people alter or unlawfully duplicate a California driver’s license or identification card.
As with a violation of PC 350, a violation of this statute will result in either a misdemeanor or felony depending on the facts of the case.
4.2. Receiving stolen property – PC 496
Per Penal Code 496 PC, receiving stolen property is the crime where people buy, receive, conceal, or sell any property that they know to be stolen.
As with making or selling counterfeit goods, a person is only guilty of this crime if they have the requisite knowledge. That is, people can contest a charge by showing that a prosecutor cannot prove beyond a reasonable doubt that they knew an item was stolen.
4.3. Theft by false pretenses – PC 532
Under Penal Code 532 Pc, theft by false pretenses is the crime where people defraud others of money or property by way of false promises or representations.
Note that if someone tries to sell a knock-off good by saying that it really is a genuine item, then a prosecutor could charge that person with both:
- selling a counterfeit good, and
- theft by false pretenses.
For additional help…
Contact us for additional help.
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our attorneys also represent clients throughout California, including those in Los Angeles and Los Angeles County.
Legal References:
- California Penal Code 350 PC. See also People v. Sy (2014) 223 Cal.App.4th 44.
- California Penal Code 350a PC.
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