Tennessee § 39-14-152 - Use of a counterfeit mark or logo.

§ 39-14-152. Use of a counterfeit mark or logo.

As used in this section: “Counterfeit mark” means: Any knowingly 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” means any trademark, service mark, trade name, label, term, device, design or word adopted or used by a person to identify that person's goods or services, and all rights protected by title 47, chapter 25, part 11; and “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. It is an offense for a person to knowingly manufacture any item or services bearing or identified by a counterfeit mark. It is an offense for a person to use, display, advertise, distribute, offer for sale, sell, or possess with the intent to sell or distribute any item or service knowing the item or service bears or is identified by a counterfeit mark. In determining whether a person who possesses an item bearing or identified by a counterfeit mark possesses the item with the intent to sell or distribute it in violation of subdivision (b)(2), the trier of fact may infer from the possession, custody or control of more than twenty-five (25) items bearing a counterfeit mark that the person possesses the items with the intent to sell or distribute them. A violation of subdivision (b)(1) shall be punished the same as is provided in § 39-14-115 for the offense of criminal simulation. In addition to that punishment, a person who violates subdivision (b)(1) shall be fined an amount up to three (3) times the retail value of the items bearing, or services identified by, a counterfeit mark, or the amount authorized in § 40-35-111 for the appropriate class of felony, whichever amount is greater. A violation of subdivision (b)(2) shall be punished as theft and graded in accordance with § 39-14-105; provided, all violations of subdivision (b)(2) shall be punished by fine only, except with respect to violations involving distribution, selling, offering for sale, or possessing with the intent to sell, in which case all methods and manner of punishment in § 39-14-105 shall apply. For purposes of determining the appropriate offense grade for a defendant violating subdivision (b)(2), the quantity or retail value of all items bearing, or services identified by, every counterfeit mark the defendant used, displayed, advertised, distributed, offered for sale, sold or possessed with the intent to sell or distribute at the time of the offense shall be aggregated. All personal property, including, but not limited to, any items bearing a counterfeit mark, or 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 subject to judicial forfeiture pursuant to chapter 11, part 7 of this title. If the intellectual property owner does not request release of seized items bearing a counterfeit mark, those items shall be destroyed unless the intellectual property owner consents to another disposition. Nothing in this section shall be construed as prohibiting an owner of intellectual property from seeking relief under any other law, including the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1; title 47, chapter 25, part 5; or the Personal Rights Protection Act of 1984, compiled in title 47, chapter 25, part 11; provided, a defendant prosecuted under this section may not also be prosecuted for criminal simulation under § 39-14-115 based upon the same conduct. Acts 2000, ch. 980, § 1; 2005, ch. 395, §§ 1, 2, 3. Code Commission Notes. Acts 2009, ch. 325, § 2 purported to enact a new section § 39-14-152 . Section 39-14-152 was previously enacted by Acts 2000, ch. 980, § 1; therefore, the enactment by Acts 2009, ch. 325, § 2 was designated as § 39-14-153 by the code commission.