Manufacturing or Selling a Counterfeit Mark

According to California Penal Code Section 350 it is prohibited to willfully manufacture, intentionally sell, or knowingly possess 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.

Elements of California Penal Code 350

The prosecutor must be able to establish the following element to convict the defendant of manufacturing, sale, or possession for sale of counterfeit goods under PC Section 350:

• Defendant was in possession of counterfeit goods;
• While defendant was in possession, he had the intention to sell the counterfeit goods, or he had actually sold counterfeit goods, or manufactured counterfeit goods
• The counterfeit good contained a seal registered with the Secretary of State or the United States Patent and Trademark Office.

Legal Defenses to California Penal Code Section 350 Charges

• Defendant didn’t know that he was in possession of counterfeit goods
• Defendant didn’t know the goods were actually counterfeit but authentic
• Defendant didn’t possess the goods for the purposes of sale but rather for personal use
• Defendant wasn’t in legal possession of the goods
• The goods didn’t contain a seal registered with the United States Patent and Trademark Office.

Penalties for Violating California Penal Code Section 350

Penalties for First Offense

Penalties for manufacturing or selling counterfeit marks under PC Section 350 depend on the value and the number of the counterfeit goods.

Manufacturing or selling counterfeit marks is a misdemeanor in case:

• The number of counterfeit items is less than 1,000
• Total value of counterfeit items worth less than $950

Penalties for a Misdemeanor Conviction Are the Following:

• Up to one year in a county jail
• Fine of up to $10,000 for individuals, and up to $200,000 for business entities
• Misdemeanor probation

Manufacturing or selling counterfeit marks is a wobbler in case:

• The number of counterfeit items is more than 1,000
• Total value of counterfeit items worth more than $950

Wobbler is a crime that can be charged as either a misdemeanor or felony, depending on the number of factors.

Penalties for a felony conviction are the following:

• Sixteen months, two years or three years in a county jail
• Fine of up to $500,000 for individuals, and up to $1,000,000 for business entities.
• Felony probation
• The court will additionally order the asset forfeiture of all of the counterfeit items and marks

Penalties for Second and Subsequent Offenses

In case the defendant has a prior conviction for manufacturing or selling counterfeit marks, then the second offense is always a wobbler even if the number of counterfeit goods is less than 1,000 and the value of counterfeit items is less than $950.

The penalties are the same as for a wobbler conviction with the exception in the amount of the fine:

• A fine of to $100,000 for individuals and $400,000 for business entities

The defendant will face harsher penalties if the manufacture or sale of the counterfeit items caused great bodily injury or death or to another person, who used the items, thinking that it was genuine. In that case, defendant always faces felony conviction with up to two, three or four years in a county jail.