§ 80-11.1. Criminal use of counterfeit trademark.
§80‑11.1. Criminal use of counterfeit trademark.
(a) For purposes ofthis section:
(1) "Counterfeitmark" means a mark that is used in connection with the sale or offeringfor sale of goods or services that are identical to or substantiallyindistinguishable from the goods or services with which the mark is used orregistered, and the use of which is likely to cause confusion, mistake, ordeception, with the use occurring without authorization of the:
a. Owner of theregistered mark, and is identical to or substantially indistinguishable from amark that is registered on the principal register of the United States Patentand Trademark Office or with the Trademark Division of the Department of theSecretary of State; or
b. Owner of theunregistered mark and is identical to or substantially indistinguishable fromsymbols, signs, emblems, insignias, trademarks, trade names, or words protectedby section 110 of the Amateur Sports Act of 1978 (Title 36, U.S.C. § 380).
(2) "Retail salesvalue" means the value computed by multiplying the number of items havinga counterfeit mark used thereon or in connection therewith, by the retail priceat which a similar item having a mark used thereon or in connection therewith,the use of which is authorized by the owner, is offered for sale to the public.
(b) Any person whoknowingly and willfully (i) uses or causes to be used a counterfeit mark on orin connection with goods or services intended for sale or (ii) has possession,custody, or control of goods having a counterfeit mark used thereon or inconnection therewith, that are intended for sale, shall be punished as follows:
(1) If the goods orservices having a counterfeit mark used thereon or in connection therewith, oron or in connection with which the person intends to use a counterfeit mark,have a retail sales value not exceeding three thousand dollars ($3,000), theperson is guilty of a Class 2 misdemeanor;
(2) If the goods orservices having a counterfeit mark used thereon or in connection therewith, oron or in connection with which the person intends to use a counterfeit mark,have a retail sales value exceeding three thousand dollars ($3,000) but notexceeding ten thousand dollars ($10,000), the person is guilty of a Class Ifelony; and
(3) If the goods orservices having a counterfeit mark used thereon or in connection therewith, oron or in connection with which the person intends to use a counterfeit mark,have a retail sales value exceeding ten thousand dollars ($10,000), the personis guilty of a Class H felony.
The possession, custody, orcontrol of more than 25 items having a counterfeit mark used thereon or inconnection therewith creates a presumption that the person having possession,custody, or control of the items intended to sell those items.
(c) Any person whoknowingly (i) uses any object, tool, machine, or other device to produce orreproduce a counterfeit mark or (ii) has possession, custody, or control of anyobject, tool, machine, or device with intent to produce or reproduce acounterfeit mark, is guilty of a Class H felony.
(d) Any personalproperty, including any item, object, tool, machine, device, or vehicle of anykind, employed as an instrumentality in the commission of, or in aiding orabetting in the commission of a violation of subsection (b) or (c) of thissection, is subject to seizure and forfeiture and shall be disposed of inaccordance with the provisions of Article 2 of Chapter 15 of the GeneralStatutes.
(e) For purposes ofenforcing this section, the Department of the Secretary of State's lawenforcement agents have statewide jurisdiction. These law enforcement agentsmay assist local law enforcement agencies in their investigations and mayinitiate and carry out, in coordination with local law enforcement agencies,investigations of violations of this section. These law enforcement agents haveall of the powers and authority of law enforcement officers when executingarrest warrants. These agents shall be authorized to have fictitious licenses,license tags, and registrations, pursuant to G.S. 20‑39(h) or G.S. 14‑250,for the purpose of conducting criminal investigations.
(f) The Secretary ofState may refer any available evidence concerning violations of this section tothe proper district attorney, who may, with or without such a reference,institute the appropriate criminal proceedings.
The attorneys employed by theSecretary of State shall be available to prosecute or assist in the prosecutionof criminal cases when requested to do so by a district attorney and theSecretary of State approves.
(g) Pursuant to anagreement between the departments, the Secretary of State may refer anyavailable evidence concerning violations of this section to the Secretary ofRevenue for purposes of determining the obligations of the violators of thissection to the State under the provisions of Chapter 105 of the GeneralStatutes. (1995, c. 436, s. 1.)