N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-32c

Approved 5/7/07

NEW JERSEY TRADEMARK COUNTERFEITING ACT

(N.J.S.A. 2C:21-32c)

Count

of the indictment charges the defenda nt with violating the New Jersey

Trademark Counterfeiting Act.

[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 defra ud 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, beari ng, 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 th e purpose to deceive or defraud

some other person.

NEW JERSEY TRADEMARK COUNTERFEITING ACT

(N.J.S.A. 2C:21-32c)

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 na ture 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 th at is identical with or substantially

indistinguishable from a genuine mark that is registered on the principal register in the United States

NEW JERSEY TRADEMARK COUNTERFEITING ACT

(N.J.S.A. 2C:21-32c)

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 i ndistinguishable 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 pr ove 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

1 N.J.S.A. 2C:21-32b(1).

NEW JERSEY TRADEMARK COUNTERFEITING ACT

(N.J.S.A. 2C:21-32c)

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/he r actions are among the circumstances to be

considered. A person who has in his/her possessi on 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 s upport 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 ite ms, 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

NEW JERSEY TRADEMARK COUNTERFEITING ACT

(N.J.S.A. 2C:21-32c)

item or service bearing or identified by the count erfeit mark. In the case of items bearing a

counterfeit mark which are components of a fini shed 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

2 N.J.S.A. 2C:21-32b(2)

3 Final determination of the degree of offens e 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 unde r 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.