Trademark Counterfeiting in Colorado

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Statute for 18 – 5 – 110.5 – Trademark Counterfeiting

StatuteHere is the charge you are facing:

18-5-110.5. Trademark counterfeiting

(1) A person commits trademark counterfeiting if such person intentionally manufactures, displays, advertises, distributes, offers for sale, sells, or possesses with intent to sell or distribute marks, goods, or services that the person knows are, bear, or are identified by one or more counterfeit marks and has possession, custody, or control of more than twenty-five items bearing a counterfeit mark.

(2) (a) Trademark counterfeiting is:

(I) A class 2 misdemeanor if a person has not previously been convicted under this section and the violation involves fewer than one hundred items that are, bear, or are identified by a counterfeit mark or the total retail value of all goods or services that are, bear, or are identified by a counterfeit mark is less than one thousand dollars;

(II) A class 1 misdemeanor if:

(A) A person has one or more previous convictions under this section; or

(B) The violation involves one hundred or more items that are, bear, or are identified by a counterfeit mark or the total retail value of all goods or services that are, bear, or are identified by a counterfeit mark is one thousand dollars or more.

(b) In addition to the penalties specified in paragraph (a) of this subsection (2), any person convicted under this section shall be liable for a fine in an amount equal to three times the total retail value of all goods or services that bear or are identified by a counterfeit mark unless extenuating circumstances are shown by such person.

(c) The remedies provided in this section are in addition to, and not in lieu of, any other civil or criminal penalties or remedies provided by law.

(3) For purposes of this section:

(a) “Counterfeit mark” means a mark identical to or substantially indistinguishable from a trademark that, without the permission of the owner of the trademark, is:

(I) Affixed or designed to be affixed to, or displayed or otherwise associated with, goods; or

(II) Displayed in advertising for, or otherwise associated with, services.

(b) (I) “Retail value” means the counterfeiter’s regular selling price for the goods or services that bear or are identified by a counterfeit mark.

(II) In the case of items bearing a counterfeit mark that are components of a finished product, “retail value” means the counterfeiter’s regular selling price for the finished product.

(III) For purposes of subsection (2) of this section, the quantity or retail value of goods or services shall include the aggregate quantity or retail value of all marks, goods, and services that are, bear, or are identified by counterfeit marks.

(c) “Trademark” means any trademark registered under the laws of this state or of the United States.

(4) In a trial under this section, any state or federal certificate of registration of a trademark shall be prima facie evidence of the facts stated therein.

Case Law

When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases.  To answer these questions, Criminal Defense Attorney turn to "case law."  That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.


Colorado Penalties for Trademark Counterfeiting

Penalties

The charge of Trademark Counterfeiting, is categorized as a:

M1, if prior conviction, value is $1,000 or more or
possession, custody or control is of 100 items or more
M2, if M1 conditions not met

Click here to find out how much jail time is associated with this penalty.

How to Use This Information

After you have hired a Denver Colorado Criminal Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case.  To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty.  These things are called “elements”.

The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your Denver Colorado Criminal Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.

Please find the model jury instruction for Trademark Counterfeiting below. These will be adapted by your Denver Colorado Attorney for your case.

The elements of the crime of are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. intentionally [manufactured] [displayed] [advertised] [distributed] [offered for sale] [sold] [possessed with the intent to sell or distribute], 4. marks, goods or services, 5. that the defendant knew [were] [bore] [were identified by] one or more counterfeit marks, and 6. the defendant had possession, custody or control of [goods or services that were, bore, or were identified by a counterfeit mark that had a retail value of [less than one thousand dollars] [one thousand dollars or more], 7. [without the affirmative defense instruction number _____.] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of trademark counterfeiting. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of trademark counterfeiting. NOTES ON USE Delete inapplicable bracketed material. When applicable, the definitions of ?counterfeit mark?, ?intentionally?, ?retail value? and ?trademark? must be given. For purposes of this instruction: (a) ?Counterfeit mark? means a mark identical to or substantially indistinguishable from a trademark that, without the permission of the owner of the trademark, is: (II) Affixed or designed to be affixed to, or displayed or otherwise associated with, goods; or (III) Displayed in advertising for, or otherwise associated with, services. (b) (I) ?Retail value? means the counterfeiter?s regular selling price for the goods or services that bear or are identified by a counterfeit mark. (II) In the case of items bearing a counterfeit mark that are components of a finished product, ?retail value? means the counterfeiter?s regular selling price for the finished product. (III) For purposes of subsection (2) of this section, the quantity or retail value of goods or services shall include the aggregate quantity or retail value of all marks, goods, and services that are, bear, or are identified by counterfeit marks. (c) ?Trademark? means any trademark registered under the laws of this state or of the United States.

To begin the process of analyzing your case, think about your case from the perspective of the prosecutor.  Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your Denver CO Criminal Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence.  Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court.  For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court.  Additionally, talk to your attorney about whether you have any defenses to Trademark Counterfeiting.

Important Notes:

Don’t Forget about Immigration:

If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.

Good Luck!

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

Written by

Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca