Texas Penal Code 32.23 – Trademark Counterfeiting
(a) In this section:
(1) “Counterfeit mark” means a mark that is identical to or substantially indistinguishable from a protected mark the use or production of which is not authorized by the owner of the protected mark.
(2) “Identification mark” means a data plate, serial number, or part identification number.
(3) “Protected mark” means a trademark or service mark or an identification mark that is:
(A) registered with the secretary of state;
(B) registered on the principal register of the United States Patent and Trademark Office;
(C) registered under the laws of another state; or
(D) protected by § 16.105, Business & Commerce Code, or by 36 U.S.C. § 371 et seq.
(4) “Retail value” means the actor‘s regular selling price for a counterfeit mark or an item or service that bears or is identified by a counterfeit mark, except that if an item bearing a counterfeit mark is a component of a finished product, the retail value means the actor’s regular selling price of the finished product on or in which the component is used, distributed, or sold.
(5) “Service mark” has the meaning assigned by § 16.001, Business & Commerce Code.
(6) “Trademark” has the meaning assigned by § 16.001, Business & Commerce Code.
(b) A person commits an offense if the person intentionally manufactures, displays, advertises, distributes, offers for sale, sells, or possesses with intent to sell or distribute a counterfeit mark or an item or service that:
(1) bears or is identified by a counterfeit mark; or
(2) the person knows or should have known bears or is identified by a counterfeit mark.
Attorney's Note
Under the Texas Codes, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class A misdemeanor | up to 1 year | up to $4,000 |
| Class B misdemeanor | up to 180 days | up to $2,000 |
Terms Used In Texas Penal Code 32.23
- Actor: means a person whose criminal responsibility is in issue in a criminal action. See Texas Penal Code 1.07
- Another: means a person other than the actor. See Texas Penal Code 1.07
- Conduct: means an act or omission and its accompanying mental state. See Texas Penal Code 1.07
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Felony: means an offense so designated by law or punishable by death or confinement in a penitentiary. See Texas Penal Code 1.07
- Misdemeanor: means an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail. See Texas Penal Code 1.07
- Owner: means a person who:
(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or
(B) is a holder in due course of a negotiable instrument. See Texas Penal Code 1.07 - Person: means an individual or a corporation, association, limited liability company, or other entity or organization governed by the Business Organizations Code. See Texas Penal Code 1.07
- Property: means real and personal property. See Texas Government Code 311.005
- United States: includes a department, bureau, or other agency of the United States of America. See Texas Government Code 311.005
(c) A state or federal certificate of registration of intellectual property is prima facie evidence of the facts stated in the certificate.
(d) For the purposes of Subsection (e), when items or services are the subject of counterfeiting in violation of this section pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense and the retail value of the items or services aggregated in determining the grade of offense.
(e) An offense under this section is a:
(1) Class C misdemeanor if the retail value of the item or service is less than $100;
(2) Class B misdemeanor if the retail value of the item or service is $100 or more but less than $750;
(3) Class A misdemeanor if the retail value of the item or service is $750 or more but less than $2,500;
(4) state jail felony if the retail value of the item or service is $2,500 or more but less than $30,000;
(5) felony of the third degree if the retail value of the item or service is $30,000 or more but less than $150,000;
(6) felony of the second degree if the retail value of the item or service is $150,000 or more but less than $300,000; or
(7) felony of the first degree if the retail value of the item or service is $300,000 or more.