THE law on buying, selling, and owning reps

[Craytonic]

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.

( (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).

( 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.

( 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;

( 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

( 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.

[Dutchy]

Wow! Thanks for taking the time to post that, very interesting. I hate the way these guys use those words that confuse you even more....

[Craytonic]

To convict under 18 USCS § 2320(a), government must prove that defendant (1) trafficked or attempted to traffic in goods or services, (2) did so intentionally, (3) used counterfeit mark on or in connection with such goods and services, and (4) knew mark was counterfeit.

United States v Habegger (2004, CA4 NC) 370 F3d 441.

[Craytonic]

Defendant's conviction for violation of Counterfeit Trademark Act, 18 USCS § 2320 was affirmed because trafficking in single good constituted as trafficking in "goods" under Act and there was no question that defendant's conduct occurred within five year limitations period under 18 USCS § 3282.

United States v Foote (2005, CA10 Kan) 413 F3d 1240, 75 USPQ2d 1353.

[Craytonic]

Evidence was insufficient to show that defendant had "trafficked or attempted to traffic" in 12 pairs of counterfeit socks where defendant was providing counterfeit socks to associate as samples, for which associate had not promised payment or anything in return; thus, there was no evidence that defendant was sending socks as consideration for anything of value.

United States v Habegger (2004, CA4 NC) 370 F3d 441.

[Craytonic]

Oh and modding is certainly illegal.

[James Bond]

????? Da Vinci Code!

I need someone to explains in plain English.

[Craytonic]

????? Da Vinci Code!

I need someone to explains in plain English.

hahahahaha. I thought that was plain english.

• It is illegal to traffic in fake watches.
  
• Charges are ok for one watch, and have been brought for two watches
  
• A search warrant can be issued against you if the post office thinks you are "trafficking" in counterfit watches
  
• If buying/owning is illegal depends on how courts interpret the "traffic" part of the law and "disposal" of watches
  
• Courts can generally infer intent, so if you have 30 watches for personal use you are probably trafficking
  
• If you only have one you may still be trafficking
  
• You probably don't have anything to worry about, this is just for those who want to know
  
• This is just for CRIMINAL, not CIVIL proceedings
  

Also, "modding" is certainly illegal

[cwai02]

Well, there are millions of fake stuffs coming into US everyday.

[Craytonic]

Well, there are millions of fake stuffs coming into US everyday.

As evidenced by my wrist. ;-)

Just wanted to let people know what the law was and contribute something since there is so much speculation on the boards. Just because it comes in doesn't mean it is legal.

[James Bond]

hahahahaha. I thought that was plain english.

• It is illegal to traffic in fake watches.
  
• Charges are ok for one watch, and have been brought for two watches
  
• A search warrant can be issued against you if the post office thinks you are "trafficking" in counterfit watches
  
• If buying/owning is illegal depends on how courts interpret the "traffic" part of the law and "disposal" of watches
  
• Courts can generally infer intent, so if you have 30 watches for personal use you are probably trafficking
  
• If you only have one you may still be trafficking
  
• You probably don't have anything to worry about, this is just for those who want to know
  
• This is just for CRIMINAL, not CIVIL proceedings
  

Also, "modding" is certainly illegal

Lawyers and Doctors used terms that are confusing so that they look professional

[Craytonic]

Lawyers and Doctors used terms that are confusing so that they look professional

I thought that is what expensive (fake) watches were for?

[Realloth]

Forget the Problems with the Middle East!

Forget the Threat of Terrorism!

Forget the Threat of “Bad Countries” getting nuclear weapons!

Forget World Hunger!

Forget the cost of rising fuel!

Forget the spread of deadly diseases such as Aids or the threat of Bird Flu!

Forget about rising crime rates!

Forget about the good hard working people who don’t have access Health Care!

Forget about illegal immigration!

Forget about unemployment!

Forget about children being murdered by their parents and getting dumped into trash bins!

Forget about the abuse of children by organized religion!

AND FOR GOODNESS SAKE FORGET ABOUT ALL THE HOMELESS PEOPLE IN THE WORLD!

Forget it all because we have a much larger problem on our hands!

Some people are actually walking around with “FAKE ROLEXS” on their wrists!

And as long as this atrocity is allowed to continue---

We as the world will truly know sorrow!

A sorrow that can only be compared to the way George Washington must of felt when he was defeated by Napoleon at Pearl Harbor!!!!!

I don’t know about you but I don’t think I can relive that!