NEW
JERSEY TRADEMARK COUNTERFEITING ACT
(N.J.S.A.
2C:21-32c) model jury charge
[READ
COUNT OF THE INDICTMENT]
The statute provides in pertinent part:
A
person commits the offense of counterfeiting who, with the intent to deceive or
defraud some other person, knowingly manufactures, uses, displays, advertises,
distributes, offers for sale, sells, or possesses with intent to sell or
distribute within, or in conjunction with commercial activities within New
Jersey, any item, or services, bearing, or identified by, a counterfeit mark.
In
order to convict the defendant of this charge, the State must prove the following
elements beyond a reasonable doubt:
1. That the defendant knowingly [choose appropriate] manufactured,
used, displayed, advertised, distributed, offered for sale, sold, or possessed
with intent to sell or distribute within New Jersey, or in conjunction with
commercial activities within New Jersey, an item or service;
2. That the item[s] or service[s] was [were]
identified by a counterfeit mark;
3. That the defendant knew that the items or
services were identified by a counterfeit mark; and
4. That defendant acted with the purpose to
deceive or defraud some other person.
The
first element that the State must prove beyond a reasonable doubt is that
defendant knowingly [choose appropriate]
manufactured, used, displayed, advertised, distributed, offered for sale, sold,
or possessed with intent to sell or distribute within New Jersey, or in
conjunction with commercial activities within New Jersey, an item or service.
A
person acts knowingly with respect to the nature of his/her conduct or the
attendant circumstances if he/she is aware that the conduct is of that nature
or that such circumstances exist or the person is aware of a high probability
of their existence. A person acts
knowingly with respect to a result of the conduct if he/she is aware that it is
practically certain that the conduct will cause such result. “Knowing,” “with knowledge,” or equivalent
terms have the same meaning. Knowledge
is a condition of the mind. It cannot be
seen. It can only be determined by
inference from the defendant’s conduct, words or acts. A state of mind is rarely susceptible of
direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State
produce witnesses to testify that an accused said that he/she had a certain
state of mind when he/she did a particular thing. It is within your power to find that such
proof has been furnished beyond a reasonable doubt by inference which may arise
from the nature of his/her acts and conduct and from all he/she said and did at
the particular time and place and from all the surrounding circumstances
established by the evidence.
The
second element that the State must prove beyond a reasonable doubt is that the
item[s] or service[s] was [were] identified by a counterfeit mark.
Counterfeit
mark means a spurious mark that is identical with or substantially
indistinguishable from a genuine mark that is registered on the principal
register in the United States Patent and Trademark Office or registered in the
New Jersey Secretary of State’s office or a spurious mark that is identical
with or substantially indistinguishable from the words, names, symbols,
emblems, signs, insignias or any combination thereof, of the United States
Olympic Committee or the International Olympic Committee; and that is used or
is intended to be used on, or in conjunction with, goods or services for which
the genuine mark is registered and in use.[1]
The
third element that the State must prove beyond a reasonable doubt is that the
defendant knew that the item[s] or service[s] were identified by a counterfeit
mark. “Knowing,” “with knowledge,” or
equivalent terms have the same meaning as I earlier explained.
The
fourth element that the State must prove beyond a reasonable doubt is that
defendant acted with the intent to deceive or defraud some other person. That is that the defendant had the purpose to
deceive or defraud some other person. A
person acts purposely with respect to the nature of his/her conduct or a result
of his/her conduct if it is the person's conscious object to engage in conduct
of that nature or to cause such a result. A person acts purposely if he/she
means to act in a certain way or to cause a certain result. A person acts
purposely with respect to attendant circumstances if the person is aware of the
existence of such circumstances or believes or hopes that they exist.
Purpose
refers to a condition of the mind. It cannot be seen. Often, it can be
determined only by inferences from conduct, words or acts. It is not necessary,
therefore, for the state to produce witnesses to testify that defendant stated,
for example, that his purpose was to deceive or defraud some other person. It
is within your power to find that proof of a state of mind has been furnished
beyond a reasonable doubt by inference which may arise from the nature of the
acts and the surrounding circumstances. Defendant’s conduct and everything done
or said by him/her preceding, connected with, and immediately succeeding
his/her actions are among the circumstances to be considered. A person who has in his/her possession or
under his/her control more than 25 items bearing a counterfeit mark you may
infer to have violated this section.
However, you are never required or compelled to draw this
inference. It is your exclusive province
to determine whether the facts and circumstances shown by the evidence support
any inference and you are always free to accept them or reject them if you
wish.
If
you find that the State has failed to prove any of the four elements beyond a
reasonable doubt then you must find the defendant not guilty of the crime
charged.
On
the other hand, if you find that the State has proven all four elements beyond
a reasonable doubt, then you must find the defendant guilty of the crime
charged.
If
you find the defendant guilty beyond a reasonable doubt you must then determine
whether the State has proven beyond a reasonable doubt if the offense involved:
[CHARGE
AS APPLICABLE]
100
or more but fewer than 1000 items, or a total retail value of $1,000.00 or more
but less than $15,000.00 bearing a counterfeit mark, or services identified by
a counterfeit mark; or 1000 or more items, or a retail value of $15,000.00 or
more bearing a counterfeit mark or services identified by a counterfeit mark.
For
purposes of this offense retail value means the counterfeiter’s regular selling
price for the item or service bearing or identified by the counterfeit
mark. 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.
Furthermore, the quantity or retail value of items or services shall
include the aggregate quantity or retail value of all items bearing, or
services identified by, every counterfeit mark the defendant [choose
appropriate] manufactured, used, displayed, advertised, distributed, offered
for sale, sold or possessed.[2];
[3]
[3] Final determination of the degree of
offense shall be made by the Court at the time of sentencing based upon the
defendant’s prior convictions, if any, under this act, which the State shall
establish by at least a preponderance of the evidence. See N.J.S.A. 2C:1-13d; N.J.S.A.
2C:44-4d; State v. Oliver, 162 N.J. 580 (2000). At that time the
defendant shall be sentenced to the degree of offense controlled by the element
satisfying the highest degree. For
example, if the jury finds the quantity or value satisfying a third-degree
offense and the defendant has no prior convictions under this act he/she shall
be sentenced as a third-degree offender; if the jury finds the quantity or
value satisfying a third-degree offense and the defendant has at least two
prior convictions under this act, he/she shall be sentenced as a second-degree offender;
if the jury finds the quantity or value satisfying a second-degree offense and
the defendant has one or no prior convictions under this act he/she shall be
sentenced as a second-degree offender.
