(A) For purposes of this section:

(1) "Counterfeit mark" means a mark that is:

(a) identical to, or substantially indistinguishable from, a registered mark or unregistered mark;

(b) used in connection with the sale or offering for sale of goods or services that are identical to, or substantially indistinguishable from, the goods or services with which the registered or unregistered mark is identified;

(c) likely to cause confusion, mistake, or deception if used; and

(d) not authorized by the owner of the registered or unregistered mark.

(2) "Registered mark" means a mark that is registered on the principal register of the United States Patent and Trademark Office or with the South Carolina Secretary of State.

(3) "Retail sales value" means the value computed by multiplying the number of items having a counterfeit mark used on them or in connection with them by the retail price at which a similar item having a mark used on it or in connection with it, the use of which is authorized by the owner, is offered for sale to the public.

(4) "Unregistered mark" means a symbol, sign, emblem, insignia, trademark, trade name, or word protected by the federal Amateur Sports Act of 1978, Title 36 U.S.C. Section 380.

(B)(1) It is unlawful for a person knowingly and wilfully to transport, transfer, distribute, sell, or otherwise dispose of, or to possess with intent to transfer, transport, distribute, sell, or otherwise dispose of, an item having a counterfeit mark on it or in connection with it.

(a) A person who knowingly and wilfully violates this subsection with respect to goods or services having a retail sales value of less than fifty thousand dollars is guilty of the offense of distribution of counterfeit marks and, upon conviction, must be punished as follows:

(i) if the goods or services have a retail sales value of two thousand dollars or less, the person is guilty of a misdemeanor and must be fined not more than one thousand dollars or imprisoned not more than one year, or both;

(ii) if the goods or services have a retail sales value of more than two thousand dollars but less than ten thousand dollars, the person is guilty of a felony and must be fined not more than ten thousand dollars or imprisoned not more than three years, or both;

(iii) if the goods or services have a retail sales value of ten thousand dollars or more, but less than fifty thousand dollars, the person is guilty of a felony and must be fined not more than twenty thousand dollars or imprisoned not more than five years, or both;

(iv) for a second or subsequent conviction of the offenses described in subitem (a), without regard to the retail sales value of the goods or services, the person is guilty of a felony and must be fined not less than one thousand dollars or more than fifty thousand dollars or imprisoned not more than ten years, or both.

(b) A person who knowingly and wilfully violates the provisions of this subsection with respect to goods or services having a retail sales value of fifty thousand dollars or more is guilty of the offense of trafficking in counterfeit marks. A person who knowingly and wilfully commits the offense of trafficking as described in this subitem is guilty of a felony and, upon conviction, must be punished as follows:

(i) for a first offense, fined not less than ten thousand dollars or more than twenty-five thousand dollars or imprisoned not more than five years, or both;

(ii) for a second or subsequent offense, fined not less than twenty thousand dollars or more than fifty thousand dollars or imprisoned not more than ten years, or both.

(2) The possession, custody, or control of more than twenty-five items having a counterfeit mark used on them or in connection with them is prima facie evidence of a violation of this section.

(C) A person who knowingly and wilfully uses any object, tool, machine, or other device to produce or reproduce a counterfeit mark or knowingly and wilfully has possession, custody, or control of any object, tool, machine, or device with intent to produce or reproduce a counterfeit mark is guilty of producing or reproducing counterfeit marks and, upon conviction, must be punished as provided in subsection (B).

(D) Personal property, including any item, object, tool, machine, or device of any kind, employed as an instrumentality in the commission of or in aiding or abetting in the commission of a violation of subsection (B) or (C), is considered contraband and is subject to seizure and forfeiture in the same manner as other property used in the commission of specified criminal offenses as provided by law.

(E) For purposes of enforcing this section, investigators in the office of the Secretary of State have statewide jurisdiction. These investigators may conduct investigations independently or may assist local law enforcement agencies in their investigations and may initiate and carry out, in coordination with local law enforcement agencies, investigations of violations of this section.

(F) The Secretary of State may refer available evidence concerning violations of this section to the appropriate solicitor who may, with or without the reference, institute the appropriate criminal proceedings.

(G) The Secretary of State also may refer available evidence concerning violations of this section to the Department of Revenue for purposes of determining the obligations of the violators of this section pursuant to state income and other taxation laws.

(H) The provisions of this section do not apply to persons who own, rent, or manage premises occupied by retailers unless that person had actual knowledge or actively participated in a violation of this section.

HISTORY: 1994 Act No. 486, Section 1, eff 3 months after July 13, 1994; 2006 Act No. 348, Section 1, eff June 12, 2006.

Effect of Amendment

The 2006 amendment rewrote this section.