Mass. Gen. Laws ch. 266 § 147

Current through Chapter 231 of the 2024

Section 266:147 - Items or services bearing or identified by counterfeit mark; sales; penalties

(a) For purposes of this section, the following words shall have the following meanings:

"Counterfeit mark", any unauthorized reproduction or copy of intellectual property, or intellectual property affixed to any item knowingly sold, offered for sale, manufactured or distributed, or identifying services offered or rendered, without the authority of the owner of the intellectual property.

"Intellectual property", any trademark, service mark, trade name, label, term, device, design or word that is (1) adopted or used by a person to identify such person's goods or services, and (2) registered, filed or recorded under the laws of the commonwealth or of any other state, or registered in the principal register of the United States Patent and Trademark Office.

"Retail value", the counterfeiter's regular selling price for the item or service bearing or identified by the counterfeit mark; provided, however, that in the case of items bearing a counterfeit mark which are components of a finished product, the retail value shall be the counterfeiter's regular selling price of the finished product on or in which the component would be utilized.

(b) Whoever willfully manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item or services bearing or identified by a counterfeit mark shall be punished as follows:

(1) if the violation involves 100 or fewer items bearing a counterfeit mark or the total retail value of all items bearing or of services identified by a counterfeit mark is $1,000 or less and is a first offense, by imprisonment in a jail or house of correction for not more than two and one-half years;

(2) if the violation involves more than 100 but fewer than 1,000 items bearing a counterfeit mark or the total retail value of all items bearing or of services identified by a counterfeit mark is more than $1,000 but less than $10,000 or is a second offense, by imprisonment in the state prison for not more than five years;

(3) if the violation involves 1,000 or more items bearing a counterfeit mark or the total retail value of all items bearing or of services identified by a counterfeit mark is $10,000 or more or if the violation involves the manufacture or production of items bearing counterfeit marks or if the violation involves the manufacture or production of items that pose a threat to the public health or safety or it is a third or subsequent offense, by imprisonment in the state prison for not more than ten years.

(c) For the purposes of this section, the quantity or retail value of items or services shall include the aggregate quantity or retail value of all items bearing or of services identified by every counterfeit mark the defendant manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses.

(d) A person having possession, custody or control of more than 25 items bearing a counterfeit mark shall be presumed to possess said items with the intent to sell or distribute. Any state or federal certificate of registration of any intellectual property shall be prima facie evidence of the facts stated therein.

(e) Any person convicted under this section shall, in addition to any penalty imposed pursuant to subsection (b), be punished by a fine in an amount not to exceed three times the retail value of the items bearing or of services identified by a counterfeit mark, unless extenuating circumstances are shown by the defendant.

(f) Any person convicted under this section shall, in addition to any penalty imposed pursuant to subsections (b) and (e), be punished by a fine in an amount equal to 75 per cent of the retail value of the items bearing or of services identified by a counterfeit mark, when the items involved pose a threat to public health or safety.

(g) Any items bearing a counterfeit mark and all personal property including, but not limited to, any items, objects, tools, machines, equipment, instrumentalities or vehicles of any kind, employed or used in connection with a violation of this section shall be seized by any law enforcement office; provided, however, that all such seized personal property shall be forfeited in accordance with the provisions of chapter 257. Upon the request of the intellectual property owner, all seized items bearing a counterfeit mark shall be released to the intellectual property owner for destruction or disposition; provided, however, that if the intellectual property owner does not request release of seized items bearing a counterfeit mark, such items shall be destroyed unless the intellectual property owner consents to another disposition.

Mass. Gen. Laws ch. 266, § 147