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Selling counterfeit goods in Santa Clara County is a serious offense. California Penal Code Section 350 prohibits the manufacturing, sale, or possession for sale of counterfeit “marks,” which are marks that are:
“identical with, or confusingly similar to,” a mark registered with the California Secretary of State or U.S. Patent and Trademark Office and
“is used, or intended to be used, on or in connection with the same type of goods or services for which the genuine mark is registered.”
A counterfeit mark on a product could include not only a name like “Gucci” or “Dolce & Gabbana,” but also symbols like the Nike “swoosh” or distinctive designs and shapes. Additionally, the mark doesn’t need to be displayed on the outside of the product to be a violation of the law.
The penalties upon conviction for a violation of Section 350 are largely dependent on the quantity and fair market value of the legitimate goods or articles at issue.
Less than 1,000 articles:
If the accused is an individual and if the total retail or fair market value is less than that required for grand theft as defined in Section 487 ($950 or less), the punishment can be a fine of up to $10,000 and/or up to a year in Santa Clara County jail.
If the accused is a business entity, it can be fined up to $200,000. (Penal Code Sec. 350(a)(1))
1,000 articles or more:
If the accused is an individual and if the total retail or fair market value is equal to or greater than that required for grand theft as defined in Section 487 (more than $950), the punishment can be a fine of up to $500,000 and/or up to a year or 16 months, or two or three years in Santa Clara County jail.
If the accused is a business entity, it can be fined up to $1,000,000. (Penal Code Sec. 350(a)(2))
The penalties are greater for subsequent offenses.
Additionally, if the counterfeit product “directly and foreseeably caused death or great bodily injury to another through reliance on the counterfeited item for its intended purpose” an accused individual shall be punished by a fine of up to $100,000 and/or by imprisonment for two, three, or four years. (Penal Code Sec. 350(c)).
On top of the fines and jail time, a conviction for selling or manufacturing counterfeit goods in Santa Clara County can also result in the forfeiture and destruction of the goods, forfeiture of any proceeds from the sale of the goods, and the payment of restitution to the company whose goods were copied. (Penal Code Sec. 350(d)(1), (d)(3), and (i)).
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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