44-1453

44-1453. Counterfeit marks; violation;
classification; presumption; seizure; forfeiture; remedies;
definitions

A. Except as provided in subsections B, C and D of this section, a person who
knowingly and with intent to sell or distribute uses, displays, advertises, distributes,
offers for sale, sells or possesses any item that bears a counterfeit mark or any service
that is identified by a counterfeit mark is guilty of a class 1 misdemeanor.

B. A person who commits any act proscribed in subsection A of this section is
guilty of a class 6 felony if either:

1. The person has one previous conviction under this section.

2. At least one of the following is true:

(a) The violation involves more than one hundred but fewer than one thousand items
that bear the counterfeit mark.

(b) The total retail value of all of the items or services that bear or are
identified by the counterfeit mark is more than one thousand dollars but less than ten
thousand dollars.

C. A person who knowingly manufactures or produces with intent to sell or
distribute any item that bears a counterfeit mark or any service that is identified by a
counterfeit mark is guilty of a class 5 felony.

D. A person who commits any act proscribed by subsection A of this section is
guilty of a class 5 felony if either:

1. The person has two or more previous convictions under this section.

2. At least one of the following is true:

(a) The violation involves at least one thousand items that bear the counterfeit
mark.

(b) The total retail value of all of the items or services that bear or are
identified by the counterfeit mark is at least ten thousand dollars.

E. A person who knowingly has possession, custody or control of at least twenty-six
items that bear a counterfeit mark is presumed to possess the items with intent to sell
or distribute the items.

F. In any criminal proceeding in which a person is convicted of a violation of this
section, the court may order the convicted person to pay restitution to the intellectual
property owner.

G. A law enforcement officer may seize any item that bears a counterfeit mark and
all other personal property that is employed or used in connection with a violation of
this section, including any items, objects, tools, machines, equipment, instrumentalities
or vehicles. All personal property seized pursuant to this section shall be forfeited
pursuant to title 13, chapter 39.

H. After a disposition or final judgment, on the request of the intellectual
property owner, a law enforcement officer shall release all seized items that bear a
counterfeit mark to the intellectual property owner for destruction or disposition. If
the intellectual property owner does not request the release of the seized items that
bear a counterfeit mark, the law enforcement officer shall destroy the items unless the
intellectual property owner consents to another form of disposition.

I. Any certificate of registration pursuant to this article or federal law of any
intellectual property is prima facie evidence of the facts stated in the certificate of
registration.

J. In addition to the remedies provided in section 44-1451, an intellectual
property owner who sustains a loss as a result of a violation of this section may file an
action in superior court for recovery of up to treble damages and the costs of the suit
including reasonable attorney fees.

K. The remedies provided in this section are cumulative to all other civil and
criminal remedies provided by law.

L. For the purposes of this section, the quantity or retail value of items or
services includes the aggregate quantity or retail value of all items that the defendant
manufactures, uses, displays, advertises, distributes, offers for sale, sells or
possesses and that bear a counterfeit mark or that are identified by a counterfeit mark.

M. For the purposes of this section:

1. "Counterfeit mark" means:

(a) Any unauthorized reproduction or copy of intellectual property.

(b) Intellectual property that is affixed to any item that is knowingly sold,
offered for sale, manufactured or distributed or to any identifying services offered or
rendered without the authority of the intellectual property owner.

2. "Intellectual property" means any trademark, service mark, trade name, label,
term, device, design or word that is adopted or used by a person to identify that
person's goods or services.

3. "Item" includes:

(a) Any component that is designed, marketed or otherwise intended to be used on or
in connection with any goods or services.

(b) Any component of a finished product.

4. "Retail value" means:

(a) For items that bear a counterfeit mark and that are components of a finished
product, the counterfeiter's regular selling price of the finished product on or in which
the component would be utilized.

(b) For all other items that bear a counterfeit mark or services that are
identified by a counterfeit mark, the counterfeiter's regular selling price for those
items or services.