Penal Code § 350 PC makes it a crime to manufacture, sell, or possess for sale, any counterfeit trademarks. This means making or selling 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. What does it mean to “make or sell 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. What does it mean to “make or sell 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.
Legal References:
- California Penal Code 350 PC. The language of the code section reads as follows:
(a) Any person who willfully manufactures, intentionally sells, or knowingly possesses for sale any counterfeit mark registered with the Secretary of State or registered on the Principal Register of the United States Patent and Trademark Office, shall, upon conviction, be punishable as follows:(1) When the offense involves less than 1,000 of the articles described in this subdivision, with a total retail or fair market value less than that required for grand theft as defined in Section 487, and if the person is an individual, he or she shall be punished by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment; or, if the person is a business entity, by a fine of not more than two hundred thousand dollars ($200,000).
(2) When the offense involves 1,000 or more of the articles described in this subdivision, or has a total retail or fair market value equal to or greater than that required for grand theft as defined in Section 487, and if the person is an individual, he or she shall be punished by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by a fine not to exceed five hundred thousand dollars ($500,000), or by both that imprisonment and fine; or, if the person is a business entity, by a fine not to exceed one million dollars ($1,000,000).
(b) Any person who has been convicted of a violation of either paragraph (1) or (2) of subdivision (a) shall, upon a subsequent conviction of paragraph (1) of subdivision (a), if the person is an individual, be punished by a fine of not more than one hundred thousand dollars ($100,000), or by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment; or, if the person is a business entity, by a fine of not more than four hundred thousand dollars ($400,000).
(c) Any person who has been convicted of a violation of subdivision (a) and who, by virtue of the conduct that was the basis of the conviction, has directly and foreseeably caused death or great bodily injury to another through reliance on the counterfeited item for its intended purpose shall, if the person is an individual, be punished by a fine of not more than one hundred thousand dollars ($100,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment; or, if the person is a business entity, by a fine of not more than four hundred thousand dollars ($400,000).
(d) (1) Except as provided in paragraph (2), in any action brought under this section resulting in a conviction or a plea of nolo contendere, the court shall order the forfeiture and destruction of all of those marks and of all goods, articles, or other matter bearing the marks, and the forfeiture and destruction or other disposition of all means of making the marks, and any and all electrical, mechanical, or other devices for manufacturing, reproducing, transporting, or assembling these marks, that were used in connection with, or were part of, any violation of this section.
(2) Upon request of any law enforcement agency and consent from the specific registrants, the court may consider a motion to have the items described in paragraph (1), not including recordings or audiovisual works as defined in Section 653w, donated to a nonprofit organization for the purpose of distributing the goods to persons living in poverty at no charge to the persons served by the organization.
(3) Forfeiture of the proceeds of the crime shall be subject to Chapter 9 (commencing with Section 186) of Title 7 of Part 1. However, no vehicle shall be forfeited under this section that may be lawfully driven on the highway with a class C, M1, or M2 license, as prescribed in Section 12804.9 of the Vehicle Code, and that is any of the following:
(A) A community property asset of a person other than the defendant.
(B) The sole class C, M1, or M2 vehicle available to the immediate family of that person or of the defendant.
(C) Reasonably necessary to be retained by the defendant for the purpose of lawfully earning a living, or for any other reasonable and lawful purpose.
(e) For the purposes of this section, the following definitions shall apply:
(1) When counterfeited but unassembled components of computer software packages are recovered, including, but not limited to, counterfeited computer diskettes, instruction manuals, or licensing envelopes, the number of “articles” shall be equivalent to the number of completed computer software packages that could have been made from those components.
(2) “Business entity” includes, but is not limited to, a corporation, limited liability company, or partnership. “Business entity” does not include a sole proprietorship.
(3) “Counterfeit mark” means a spurious mark that is identical with, or confusingly similar to, a registered mark 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. It is not necessary for the mark to be displayed on the outside of an article for there to be a violation. For articles containing digitally stored information, it shall be sufficient to constitute a violation if the counterfeit mark appears on a video display when the information is retrieved from the article. The term “spurious mark” includes genuine marks used on or in connection with spurious articles and includes identical articles containing identical marks, where the goods or marks were reproduced without authorization of, or in excess of any authorization granted by, the registrant. When counterfeited but unassembled components of any articles described under subdivision (a) are recovered, including, but not limited to, labels, patches, fabric, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging, or any other components of any type or nature that are designed, marketed, or otherwise intended to be used on or in connection with any articles described under subdivision (a), the number of “articles” shall be equivalent to the number of completed articles that could have been made from those components.
(4) “Knowingly possess” means that the person possessing an article knew or had reason to believe that it was spurious, or that it was used on or in connection with spurious articles, or that it was reproduced without authorization of, or in excess of any authorization granted by, the registrant.
(5) Notwithstanding Section 7, “person” includes, but is not limited to, a business entity.
(6) “Registrant” means any person to whom the registration of a mark is issued and that person’s legal representatives, successors, or assigns.
(7) “Sale” includes resale.
(8) “Value” has the following meanings:
(A) When counterfeit items of computer software are manufactured or possessed for sale, the “value” of those items shall be equivalent to the retail price or fair market price of the true items that are counterfeited.
(B) When counterfeited but unassembled components of computer software packages or any other articles described under subdivision (a) are recovered, including, but not limited to, counterfeited digital disks, instruction manuals, licensing envelopes, labels, patches, fabric, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging, or any other components of any type or nature that are designed, marketed, or otherwise intended to be used on or in connection with any articles described under subdivision (a), the “value” of those components shall be equivalent to the retail price or fair market value of the number of completed computer software packages or other completed articles described under subdivision (a) that could have been made from those components.
(C) “Retail or fair market value” of a counterfeit article means a value equivalent to the retail price or fair market value, as of the last day of the charged crime, of a completed similar genuine article containing a genuine mark.
(f) This section shall not be enforced against any party who has adopted and lawfully used the same or confusingly similar mark in the rendition of like services or the manufacture or sale of like goods in this state from a date prior to the earliest effective date of registration of the service mark or trademark either with the Secretary of State or on the Principle Register of the United States Patent and Trademark Office.
(g) An owner, officer, employee, or agent who provides, rents, leases, licenses, or sells real property upon which a violation of subdivision (a) occurs shall not be subject to a criminal penalty pursuant to this section, unless he or she sells, or possesses for sale, articles bearing a counterfeit mark in violation of this section. This subdivision shall not be construed to abrogate or limit any civil rights or remedies for a trademark violation.
(h) This section shall not be enforced against any party who engages in fair uses of a mark, as specified in Section 14247 of the Business and Professions Code.
(i) When a person is convicted of an offense under this section, the court shall order the person to pay restitution to the trademark owner and any other victim of the offense pursuant to Section 1202.4.
(Amended by Stats. 2012, Ch. 867, Sec. 19. (SB 1144) Effective January 1, 2013.)
See also People v. Sy (2014) 223 Cal.App.4th 44.
- California Penal Code 350a PC.
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