California Penal Code Section 350 PC: Manufacturing Or Selling A Counterfeit Mark
Trademark counterfeiting – the unauthorized use of a protected trademark on knockoff products – is a serious offense in California. Penal Code Section 350 PC specifically makes it illegal to manufacture, sell, or possess counterfeit trademarks or goods for sale in the state. This law allows prosecutors to crack down on counterfeiters who profit from copying registered trademarks.
A conviction under California’s counterfeit trademark law has severe consequences. Defendants face up to 3 years in jail or prison, plus steep fines up to $250,000. Businesses convicted under PC 350 can be fined up to $1 million. These strict penalties reflect how seriously California takes intellectual property crimes.
But Section 350 is also controversial. Critics argue it stifles competition and gives big brands too much power. There are also concerns over enforceability when counterfeits come from overseas. Still, this law remains an important tool for protecting trademarks and public consumers.
Elements of the Crime
To prove a defendant is guilty of manufacturing or selling a counterfeit mark, a prosecutor must establish these elements:
- The defendant manufactured, sold, or possessed an item for sale
- The item bore a counterfeit of a mark registered in California
- The defendant acted willfully or intentionally
Let’s take a closer look at what each of these parts means.
Manufacturing, Selling, or Possessing
The first element is straightforward. PC 350 prohibits making, selling, or possessing counterfeit goods with intent to sell. This covers:
- Producing knockoff or fake products
- Offering counterfeit items for sale in stores or online
- Having large quantities of counterfeit products in stock for future sales
It does not include simple possession for personal use. Buying a counterfeit watch or purse for yourself does not violate Section 350. The items must be possessed “for sale.”
Counterfeit Mark
The second element focuses on the use of a counterfeit trademark. This means using a protected brand name, logo, design, or other mark without authorization.
For example, making purses with a fake Chanel logo is trademark counterfeiting. So is selling “Rolex” watches that aren’t actually made by Rolex. Other common counterfeits include:
- Fake designer clothes, shoes, and accessories
- Pirated movies, music, software, and games
- Knockoff pharmaceuticals or medical devices
- Copying food, beverage, and consumer product branding
The counterfeited mark must be registered in California or federally to trigger PC 350. Using a brand name not registered in the state may constitute fraud but is not trademark counterfeiting.
Willful or Intentional Conduct
The final element addresses the defendant’s mental state. Prosecutors must prove the defendant acted intentionally or willfully in dealing with counterfeits. This means they must have known the items bore a counterfeit trademark.
This intent requirement helps protect innocent sellers who unknowingly deal in counterfeits. But willful blindness is not a defense. Intentionally avoiding knowledge the items are counterfeit meets the intent requirement under Section 350.
Penalties
A conviction under California’s counterfeit trademark law carries severe criminal penalties. Potential consequences include:
- Misdemeanor or felony charges
- Up to 1 year in county jail for misdemeanors
- 16 months, 2 years, or 3 years in jail or prison for felonies
- Up to $250,000 in fines for individuals
- Up to $1 million in fines for businesses
- Restitution to the trademark owner
- Probation or parole
Prosecutors have discretion whether to file misdemeanor or felony charges under PC 350. Factors that influence this include:
- The quantity or retail value of counterfeits involved
- Sophistication of the counterfeiting operation
- Defendant’s criminal history
- Potential losses to the trademark owner
- Risks to public health or safety from the counterfeits
Large-scale or dangerous counterfeiting schemes will face felony prosecution. Smaller operations may be charged as misdemeanors. Businesses face steeper fines than individuals under the statute.
Related Offenses
Counterfeiting charges may be accompanied by other criminal allegations, such as:
- Trademark dilution – Penal Code 14245 PC. Reducing the value of a famous trademark.
- Trademark infringement – Penal Code 14250 PC. Deceiving consumers about product origins.
- Counterfeiting currency – Penal Code 476 PC. Making or possessing fake bills.
- Identity theft – Penal Code 530.5. Using someone’s name or information without consent.
- Forgery – Penal Code 470. Faking or altering documents.
Skilled criminal defense counsel can fight multiple charges stemming from an alleged counterfeiting scheme. In many cases, charges can be reduced or consolidated through effective negotiation.
Defenses
While PC 350 imposes strict liability, possible defenses include:
- Lack of intent – You didn’t know the items were counterfeit trademarks.
- No possession – You never actually possessed the alleged counterfeits.
- Free speech – Your use of the trademark is protected First Amendment expression.
- Fair use – Your use is allowable because it is descriptive, not as a brand name.
- Authorized use – You had permission from the trademark owner to use the mark.
An experienced lawyer can evaluate the evidence and develop defenses to avoid a conviction under PC 350. In some cases, the charges may be dismissed before trial.
Practical Impact
California’s law against counterfeit trademarks has far-reaching effects. It allows major brands like Disney, Apple, and Tiffany Co. to crack down on counterfeiters selling fake versions of their products.
This benefits consumers by reducing their exposure to shoddy and potentially dangerous knockoffs. It also prevents dilution of strong brand names that companies invest heavily in building.
However, Section 350 PC also receives criticism on several fronts:
- It chills competition by blocking use of common terms and logos
- It restricts free speech protections for parody and criticism involving trademarks
- It imposes severe criminal penalties for non-violent acts
- It is hard to enforce against overseas counterfeiting operations
The rise of e-commerce and global supply chains make enforcing this law increasingly difficult. While PC 350 remains an important tool for brands, it has limited impact on multinational counterfeiting enterprises.
Getting Legal Help
Facing criminal charges under California’s law against counterfeit trademarks can be stressful and overwhelming. But an experienced lawyer can protect your rights and future.
A skilled criminal defense attorney will evaluate the evidence against you and develop an effective strategy for contesting the charges. In many cases, charges can be reduced or even dismissed through effective case negotiation.
Don’t leave your fate to chance. Get experienced legal help fighting accusations of manufacturing or selling counterfeit trademarks. With proper representation, you can avoid harsh penalties that could derail your future.
Sources:
https://www.shouselaw.com/ca/defense/penal-code/350/
https://www.simmrinlawgroup.com/california-penal-code-section-350/
https://johndrogerslaw.com/counterfeit-goods-charges-california-penal-code-350-pc/