No offense occurs under this section by a person
providing immigration services if that person has been
accredited as a representative by federal law. N.J.S.A.
2C:21-31d.
XXXIV. COUNTERFEITING TRADEMARKS
The Legislature created this offense in 1997. The
statute was then amended in 1999 to add protection for
the U.S. Olympic Committee’s trademark rights. L.
1997, c.57, § 1, amended by L. 1999, c.313.
A. Definitions
“Counterfeit mark” is defined as a spurious mark that
is identical with or substantially indistinguishable from
either a genuine mark that is registered on the principal
register in the United States Patent and Trademark
Office or registered in the New Jersey Secretary of State’s
office or the words, names, symbols, emblems, signs,
insignias or any combination thereof, of the United States
Olympic Committee or the International Olympic
Committee. N.J.S.A. 2C:21-32b(1). The mark must
also be used or intended to be used in conjunction with
goods or services for which the genuine mark is registered
and in use. Id.
“Retail Value” is defined as the counterfeiter’s
regular selling price for the item or service bearing or
identified by the counterfeit mark. In the case of items
bearing a counterfeit mark which are components of a
finished product, the retail value shall be the
counterfeiter’s regular selling price of the product on or
in which the component would be utilized. N.J.S.A.
2C:21-32b(2).
The quantity or retail value of items or services must
include the aggregate quantity or retail value of all items
bearing, or services identified by, every counterfeit mark
the defendant manufactures, uses, displays, advertises,
distributes, offers for sale, sells or possesses. N.J.S.A.
2C:21-32f(1).
B. Offense
It is a crime for a person to knowingly manufacture,
use, display, advertise, distribute, offer for sale, sell, or
possess with intent to sell or distribute within or in
conjunction with commercial activities within New
Jersey, any item or services bearing, or identified by, a
counterfeit mark. N.J.S.A. 2C:21-32c. The defendant
must perform the activity with the intent to deceive some
other person. Id. The phrase “[s]ome other person”
includes within its protective sweep not only the
immediate customer, but also the trademark owner and
prospective future consumers of the goods. State v.
Marchiani, N.J. Super. , 2001 WL 87861 at *5 (App.
Div. 2001).If the defendant has in his possession or control more
than twenty-five items bearing a counterfeit mark, he or
she is presumed to have committed the offense. N.J.S.A.
2C:21-32c. Possession or control includes both actual
and constructive possession.Any State or federal certificate of registration of any
intellectual property is prima facie evidence of the facts
stated in the certificate. N.J.S.A. 2C:21-32f(2).Any person convicted of this offense is subject to an
additional fine, which departs from the ordinary
provisions relating to fines. N.J.S.A. 2C:21-32d. The
defendant may be fined in an amount up to three times
the retail value of the items or services involved, provided
the fine does not exceed $100,000 for a fourth degree
crime, $250,000 for a third degree crime, and $500,000
for a second degree crime. N.J.S.A. 2C:21-32d.All items bearing a counterfeit mark and all personal
property including, but not limited to, any items,
objects, tools, machines, equipment, instrumentalities or
vehicles of any kind employed or used in connection with
a violation of this section are subject to forfeiture.
N.J.S.A. 2C:21-32e.Conviction under this section does not preclude the
defendant’s liability for civil remedies under N.J.S.A.
56:3-13.16; N.J.S.A. 2C:21-32g.C. GradingThe crime is of the fourth degree if it (i) involves fewer
than 100 items bearing a counterfeit mark; (ii) involves
a total retail value of less than $1,000 for all items bearing
or services identified by a counterfeit mark; or (iii) is a first
conviction for the offense. N.J.S.A. 2C:21-32d(1).The crime is of the third degree if it (i) involves 100
or more items but fewer than 1000 items bearing a
counterfeit mark; (ii) involves a total retail value of
$1,000 or more but less than $15,000 for all items
bearing or services identified by a counterfeit mark; or
(iii) is a second conviction for the offense. N.J.S.A.
2C:21-32d(2).