Sale of Counterfeits in Maryland

Maryland law prohibits the intentional distribution, sale and possession of items identified by a counterfeit mark. In a recent case, the defendant was driving on Route 301 with two burned out tag lights when he was pulled over by a state trooper. The state trooper noticed that the defendant did not make eye contact and that there were four air freshening trees hanging in the car, including at the rear of the car.

He radioed to the station for a criminal history and traffic check on the defendant, which revealed the defendant’s license had expired and the defendant had been charged with drug possession. Accordingly he called for backup and began citing the defendant for driving on an expired license.

When the other trooper arrived, they spoke about the situation and asked the defendant and his companion to exit the car. A trained dog searched the vehicle for illegal substances. There were two marijuana cigarettes, which the defendant admitted belonged to him. Also recovered were more than 300 DVDs and CDs suspected to be counterfeits. The defendant was charged on numerous counts, including a charge of distributing, selling and possessing counterfeit items.

Before the trial began, the defendant filed a motion to dismiss on the grounds that the statute regarding counterfeiting was unconstitutionally vague and overbroad. The lower court denied the motion. He also filed a motion to suppress, claiming the stop was unreasonably long.

Among other witnesses at trial was an investigator with the MPAA who testified that the DVDs were counterfeit. He based this conclusion on packaging, paperwork, the color of the discs, the fact that certain movies on the DVDs had not yet been released for purchase by the general public yet and the lack of manufacturing information on the disc. He also noted numerous counterfeit marks. The defendant testified he was a licensed vendor and that he had been buying and selling DVDs for about ten years.

The jury convicted the defendant of distributing, selling and possessing items that were identified by a counterfeit mark having an aggregate value of $1000 or more. They also convicted him of seven counts of knowingly possessing with intent to distribute a recorded article without credit, one count of possessing marijuana and driving on an expired license.

For the counterfeiting conviction, the defendant was sentenced to incarceration for 10 years, but 9 years of the sentence were suspended. The defendant appealed on multiple grounds, arguing among other things that the statute prohibiting transactions of counterfeits was unconstitutionally vague and overbroad.

Discussing vagueness, the appellate court explained that a statute must be sufficiently precise and fixed to let people know what conduct will lead them to be penalized by it and must offer sufficient guidelines for law enforcement, judges and triers of fact to administer it. The defendant in this case argued that “intellectual property” was limitless and therefore vague. The appellate court examined whether a person of common intelligence would know what that term meant. It concluded that the statute did not, as the defendant claimed, penalize an “almost limitless” number of actions. In the context of the statute in its entirety, the meaning of “intellectual property” is clear enough. The statute provides among other things that registration of intellectual property at the state or federal level is prima facie evidence of the IP being a trademark or trade name.

Similarly, the appellate court explained the statute was not unconstitutionally overbroad. An example of an overbroad statute would be one that criminalized constitutionally protected speech or expressive conducted protected by the First or Fourteen Amendments. In this case, the counterfeiting statute didn’t bar display or distribution or IP, but rather criminalized willful manufacture, distribution or marketing of goods and services the defendant knew were identified by a counterfeit mark. The appellate court affirmed the trial court’s judgment.

If you are arrested or charged with a crime, it is in your best interests to consult a knowledgeable Maryland criminal defense attorney. We can determine what kinds of defenses are available in your particular case. Contact us at 301-519-2801 or via our online form.

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