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Craytonic

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  2. THE law on buying, selling, and owning reps

    in General Discussion

    Posted

    THIS IS NOT LEGAL ADVICE.

    Apologies if this is already out there. I thought everyone might want to know the actual law, not speculation, on how the government regulates the sale of counterfit goods. I skimmed 50 cases. All defendants are classified as dealers/traffickers. However, in one case, charged were brought against someone for trafficking in two (2) replicas (he got off though, but not on quantity)! Also, police were able to get a search warrant in another case where the post office suspected someone of "trafficking". Intent was key in all the cases as to the counterfit nature of the watch. Almost all cases were against big-time dealers (jewlers, etc).

    Our main issue is the trafficking part of the statute.

    (2) the term "traffic" means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of;
    Our main concern here is "dispose of" which is not defined in the statute. Big surprise, it is obviously the congressional catch-all. Most definitions of "dispose" entail transferring property, so it probably doesn't apply to individual ownership if the buyer is the final destination.

    HOWEVER, I think if you more than 2 replicas (and certainly >10). The courts would infer intent to traffic. This is done ALL THE TIME in drug cases. Nevertheless, I don't see the government bringing criminal charges against anyone, not worth the time. A civil suit would be entirely different, and I did not research that. perhaps another time. These are just my very brief thoughts; I hope to read the statute more carefully later and make comments.

    Here is the actual statute:

    § 2320. Trafficking in counterfeit goods or services

    (a) Whoever intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services, or intentionally traffics or attempts to traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive, shall, if an individual, be fined not more than $ 2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, be fined not more than $ 5,000,000. In the case of an offense by a person under this section that occurs after that person is convicted of another offense under this section, the person convicted, if an individual, shall be fined not more than $ 5,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than $ 15,000,000.

    (B) (1) The following property shall be subject to forfeiture to the United States and no property right shall exist in such property:

    (A) Any article bearing or consisting of a counterfeit mark used in committing a violation of subsection (a).

    (B) Any property used, in any manner or part, to commit or to facilitate the commission of a violation of subsection (a).

    (2) The provisions of chapter 46 of this title [18 USCS §§ 981 et seq.] relating to civil forfeitures, including section 983 of this title [18 USCS § 983], shall extend to any seizure or civil forfeiture under this section. At the conclusion of the forfeiture proceedings, the court, unless otherwise requested by an agency of the United States, shall order that any forfeited article bearing or consisting of a counterfeit mark be destroyed or otherwise disposed of according to law.

    (3) (A) The court, in imposing sentence on a person convicted of an offense under this section, shall order, in addition to any other sentence imposed, that the person forfeit to the United States--

    (i) any property constituting or derived from any proceeds the person obtained, directly or indirectly, as the result of the offense;

    (ii) any of the person's property used, or intended to be used, in any manner or part, to commit, facilitate, aid, or abet the commission of the offense; and

    (iii) any article that bears or consists of a counterfeit mark used in committing the offense.

    (B) The forfeiture of property under subparagraph (A), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section. Notwithstanding section 413(h) of that Act [21 USCS § 853(h)], at the conclusion of the forfeiture proceedings, the court shall order that any forfeited article or component of an article bearing or consisting of a counterfeit mark be destroyed.

    (4) When a person is convicted of an offense under this section, the court, pursuant to sections 3556, 3663A, and 3664 [18 USCS §§ 3556, 3663A, and 3664], shall order the person to pay restitution to the owner of the mark and any other victim of the offense as an offense against property referred to in section 3663A©(1)(A)(ii) [18 USCS § 3663A©(1)(A)(ii)].

    (5) The term "victim", as used in paragraph (4), has the meaning given that term in section 3663A(a)(2) [18 USCS § 3663A(a)(2)].

    © All defenses, affirmative defenses, and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.

    (d) (1) During preparation of the presentence report pursuant to Rule 32© of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.

    (2) Persons permitted to submit victim impact statements shall include--

    (A) producers and sellers of legitimate goods or services affected by conduct involved in the offense;

    (B) holders of intellectual property rights in such goods or services; and

    © the legal representatives of such producers, sellers, and holders.

    (e) For the purposes of this section--

    (1) the term "counterfeit mark" means--

    (A) a spurious mark--

    (i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature;

    (ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered;

    (iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and

    (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive; or

    (B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36;

    but such term does not include any mark or designation used in connection with goods or services, or a mark or designation applied to labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature used in connection with such goods or services, of which the manufacturer or producer was, at the time of the manufacture or production in question, authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation.

    (2) the term "traffic" means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of;

    (3) the term "financial gain" includes the receipt, or expected receipt, of anything of value; and

    (4) the term "Lanham Act" means the Act entitled "An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes", approved July 5, 1946 (15 U.S.C. 1051 et seq.).

    (f) Nothing in this section shall entitle the United States to bring a criminal cause of action under this section for the repackaging of genuine goods or services not intended to deceive or confuse.

  6. Funny encounters with your watch...

    in General Discussion

    Posted

    To this day...STILL looks brand new. And he wears it all through the day...AND when he sleeps because he wants to make sure it keeps the time. I told him I'd get him a winder, but nothing doing. He loves the watch.

    I never understand some parent's affinity for random watches. My little brother bought a fake swiss army watch in DC as a gag gift for $10 and gave it to my father. It SCREAMED fake, quartz, etc. it had some sort of mood back that changed from black to bronze on occasion, never really figured that out. Some sort of wanna-be PVD coating he scratched to pieces on the outside.

    Wore it till the first battery died, replaced it, and wore again every day. He went through two bands as well after the first velcro NATO style one wore out. I go to visit this year, notice he isn't wearing it and asked what happened. He said it died and he had "tried to open it" which apparently involved a screw driver, a hammer, and possibly a wrench. Needless to say mother bought him a new, real watch ( she hated the fake one anyways). I can't believe he got so much use out of a $10 street side rep though, but I sure am glad it died.

  8. Funny encounters with your watch...

    in General Discussion

    Posted

    Tis true...

    Was in Sak's 5th ave in ATL last weekend w/ my girlfriend on way back to masters; I was just goofing in watches while my girlfriend looked at shoes/sunglasses/etc. Was wearing the big 127, saleswoman tripped over herself to pull out a few cartiers even though I told her I was just goofing and waiting on my girl. Tried on the Santos 100 Chrono though.. MONSTER watch, that thing is huge!

  15. Fake Pam 129 1950 for 7K on Ebay?

    in Name & Shame

    Posted

    Looked at it some more... I bet it is one of the original movements dropped in a rep case. Certificate looks exactly like the one I got from eddie - the printing is just a little hazy. The only thing strange is that the # on the box matches the # on the watch!

    1/1950 chance that it is real I guess.

  16. Fake Pam 129 1950 for 7K on Ebay?

    in Name & Shame

    Posted

    http://cgi.ebay.com/Panerai-Pam00127-1950-...1QQcmdZViewItem

    OK, my first post in this section. Have been thinking of getting a real one. I have the super-duper one from EL. The one in the auction looks real in every way but something is off... but can't place it.

    I flip over the rep on my wrist and it hits me... same serial number on my rep as the auction E0581/1950. BUT the movement on this one is more correct. Humm....

    Anyone else think this is fake? The matching # is too big a coincidence. Could someone notify Ebay? I have no idea how to do so.

  18. Since we were discussing what Dealers post......

    in General Discussion

    Posted · Edited by Craytonic

    Eddie is the best dealer I have ever dealt with (I have been through most) and have nothing but the utmost respect for him. I literally can't tell the 127 I got from him, after fixing the cannon pin, is not the real deal.

    I like that he made us aware of what is coming. Saves the buyer from buying a soon-to-be outdated one from him or anyone else. I am looking at the post on another site and he states clearly it is a pic of the original. Eddie is NOT a scammer by any means, unlike other dealers I have NEVER read any complaints about him. Communicating with him is fast and easy.

    BTW eddie if you read this send me that background info on the Chopard ;) I love it and wore it to a black tie event last week, beautiful watch.

  22. Posting Prices

    in General Discussion

    Posted

    @ HeWhoIsLikeGod.....the good old American way.......HUH?

    Would you countenance going into Wal Mart or your local GM dealer.....and not seeing any posted prices......I don't think so....!

    They don't have to post prices, they just choose to because customers would go elsewhere where prices are posted (K-Mart or Ford dealer). The prices at a car dealership don't have too much meaning anways.

    Plenty of places don't have prices for every item (jewelery store for instance).

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