§ 11-17-13. Forgery, counterfeiting, or alteration of trademark, service mark, or identification mark. (a) As used in this chapter, "forged" or "counterfeited trademark", "service mark", or "identification mark" means any mark or design which is: (1) identical to, substantially indistinguishable from, or an imitation of a trademark, service mark, or identification mark which is registered for those types of goods or services with the secretary of state pursuant to chapter 2 of title 6 or registered on the principal register of the United States Patent and Trademark Office or registered under the laws of any other state or protected by the Federal Amateur Sports Act of 1978, Title 36 USC § 380, or if a registered or unregistered use of the trademark or design or data plate, serial number, or part identification number; and (2) which has not been authorized by the owner of it and is done for pecuniary gain and with the intent to defraud the holder of the trademark, service mark, or identification mark.

(b) Any person who knowingly and willfully forges or counterfeits any trademark, service mark, or identification mark, without the consent of the owner of the trademark, service mark or identification mark, or who knowingly possesses any tool, machine device, or other reproduction instrument or material with the intent to reproduce any forged or counterfeited trademark, service mark, or identification mark, shall be guilty of the offense of trademark counterfeiting.

(c)(1) Any person who knowingly and willfully sells, offer to sell, or possesses with the intent to sell goods which contain a counterfeit trademark, service mark, or identification mark or sells or offers for sale a service in conjunction with a service mark the person knows is counterfeit, shall be guilty of the offense of trafficking in trademark counterfeits.

(2) If the goods or service to which the forged or counterfeit trademarks, service marks, or identification marks are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail value of the goods if they were not forged or counterfeited of five thousand dollars ($5,000) or more, the person shall be guilty of a felony and upon conviction may be imprisoned up to five (5) years and fined up to ten thousand dollars ($10,000).

(3) If the goods or service to which the forged or counterfeit trademarks, service marks, or registered designs are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail value of the goods if they were not forged or counterfeited of less than five thousand dollars ($5,000), the person shall be guilty of a misdemeanor and may be imprisoned up to one year and fined up to one thousand dollars ($1,000).

(4) Any person who knowingly: (i) uses an object, tool, machine, or other device to produce or reproduce a counterfeit mark, or (ii) has possession, custody, or control of any object, tool, machine, or device with intent to produce or reproduce a counterfeit mark, is guilty of a felony and may be imprisoned up to five (5) years and fined up to five thousand dollars ($5,000).

(5) The possession, custody, or control of more than twenty-five (25) items having a counterfeit mark used on or in connection with them creates a presumption that the person having possession, custody, or control of the items intended to sell those items.

(6) If a person who violates this section previously has been convicted of violating this section, the person shall be guilty of a felony and may be imprisoned up to five (5) years and fined up to five thousand dollars ($5,000).

(d)(1) Any personal property, including any item, object, tool, machine, device, or vehicle of any kind, employed as an instrumentality in the commission of, or in aiding or abetting in the commission of a violation of this section, or proceeds derived directly from a violation of this section, is subject to seizure and forfeiture and further proceedings shall be had for their forfeiture as is prescribed by law in chapter 21 of title 12; provided, that no property used by any person shall be forfeited under the provisions of this section unless it shall appear that the owner of the property had knowledge, actual or constructive, and was a consenting party to the illegal act.

(2) Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the law enforcement agency making the seizure and whenever property is forfeited under this chapter it shall be utilized as follows:

(i) Where the seized property is a vessel, vehicle, aircraft, or other personal property, it may be retained and used by the law enforcement agency that seized that property where the use of the property is reasonably related to the law enforcement duties of the seizing agency. If the seized property is a motor vehicle which is inappropriate for use by the law enforcement agency due to style, size or color, the seizing agency shall be allowed to apply the proceeds of sale or the trade-in value of the vehicle for activities reasonably related to law enforcement duties.

(ii) Eighty percent (80%) of the proceeds shall be divided among the state and local law enforcement agencies proportionately based upon their contribution to the investigation of the criminal activity related to the asset being forfeited; the balance shall go to the department of attorney general for purposes related to law enforcement.

(3) At the conclusion of any criminal matter brought under this chapter any property seized pursuant to this chapter containing a counterfeit trademark, service mark, copyrighted or registered design shall be destroyed unless the owner of the trademark, service mark, or identification mark gives prior written consent to the use or sale of the property and the trademark, service mark, or identification mark is obliterated or removed from the property prior to the disposition of it.

History of Section. (P.L. 1997, ch. 53, § 1; P.L. 1997, ch. 100, § 1.)