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What is a
3D Trademark?
A 3D Trademark Registration allows one to claim ownership of the
three dimensional qualities that consumers associate with a product.
Famous marks include Goldfish cheese crackers by Pepperidge farms
and the golden arches configuration of early McDonalds hamburger
stands.
What is the difference between a 3D Trademark and a Design Patent?
Trademarks protect the good will of a company product and can last
indefinitely. Design patents protect the intellectual conception
of a design. They last 14 years from issue.
Registration of a Trademark with the United States Patent and Trademark
Office will allow criminal prosecution in many states. It is better
to call the cops to catch counterfeiters, rather than your attorney
because the cops do not bill you hourly and have power of arrest
(search and seizure).
Noteworthy features of California Penal Code § 350
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1.
Enhanced penalties for repeat offenders in section (b).
2. Enhanced penalties for selling over 1000 units.
3. Violation for possession away from point of sale in section
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California
Penal Code § 350 is quoted below. Manufacture or sale of counterfeit
goods.
(a) Any person who, without the consent of the registrant, willfully
manufactures, intentionally sells, or knowingly possesses for sale
at the point of sale any counterfeit of a mark registered with the
Secretary of State or registered on the Principle Register of the
United States Patent and Trademark Office, shall upon conviction,
be punishable as follows:
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(1) Where
the offense involves less than 1,000 of the articles described
in this subdivision, and if the person is an individual, he
or she shall be punished by a fine of not more than five thousand
dollars ($5,000), by imprisonment in a county jail for not
more than one year, or by both that fine and imprisonment;
or, if the person is a corporation, by a fine of not more
than one hundred thousand dollars ($100,000).
(2) Where the offense involves 1,000 or more of the articles
described in this subdivision , and if the person is an individual,
he or she shall be punished by imprisonment in a county jail
not to exceed one year, or in the state prison for 16 months,
or two or three years, by a fine not to exceed two hundred
fifty thousand dollars ($250,000), or by both that imprisonment
and fine; or, if the person is a corporation, by a fine not
to exceed five hundred thousand dollars ($500,000).
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(b) Any person
who has been convicted of a violation of either paragraph (1) or
(2) of subdivision (a) shall, upon a subsequent conviction of paragraph
(1) of subdivision (a), if the person is an individual, be punished
by a fine of not more than fifty thousand dollars ($50,000), by
imprisonment in a county jail for not more than one year, or in
the state prison for 16 months, or two or three years, or by both
that fine and imprisonment; or, if the person is a corporation,
by a fine of not more than two hundred thousand dollars ($200,000).
(c) Any person who has been convicted of a violation of subdivision
(a) and who, by virtue of the conduct that was the basis of the
conviction, has directly and foreseeably caused death or great bodily
injury to another through reliance on the counterfeited item for
its intended purpose shall, if the person is an individual, be punished
by a fine of not more than fifty thousand dollars ($50,000), by
imprisonment in the state prison for two, three, or four years,
or by both that fine and imprisonment; or, if that person is a corporation,
by a fine of not more than two hundred thousand dollars ($200,000).
(d) Any person who knowingly possesses for sale, at a location other
than the point of sale, any article described in subdivision (a)
is guilty of a public offense.
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(1) A
violation of this subdivision involving less than 100 of these
articles shall be punishable by imprisonment in a county jail
for not more than six months, by a fine not to exceed five
thousand dollars ($5,000), or by both that imprisonment and
fine. Any person who previously has been convicted of a violation
of any paragraph of this subdivision shall, upon a new conviction
of violating this subdivision arising from conduct described
in this paragraph, be punished by imprisonment in a county
jail not to exceed one year, or by a fine not to exceed ten
thousand dollars ($10,000), or by both that imprisonment and
fine. Any person who has been convicted of a violation of
any paragraph of this subdivision on two or more previous
occasions shall, upon a new conviction of violating this paragraph,
be punished by imprisonment in a county jail not to exceed
one year, or in the state prison for 16 months, or two or
three years, by a fine not to exceed twenty-five thousand
dollars ($25,000), or by both that imprisonment and fine.
(2) A violation of this subdivision involving 100 or more
of these articles, but less than 1,000, shall be punishable
by imprisonment in a county jail not to exceed one year, by
a fine not to exceed ten thousand dollars ($10,000), or by
both that imprisonment and fine. Any person who previously
has been convicted of a violation of any paragraph of this
subdivision on one or more occasions shall, upon a new conviction
of violating this subdivision arising from conduct described
in this paragraph, be punished by imprisonment in a county
jail not to exceed one year, or in the state prison for 16
months, or two or three years, by a fine not to exceed twenty-five
thousand dollars ($25,000), or by both that imprisonment and
fine.
(3) A violation of this subdivision involving 1,000 or more
of these articles shall be punishable by imprisonment in a
county jail not to exceed one year, or in the state prison
for 16 months, or two or three years, by a fine not to exceed
one hundred thousand dollars ($100,000), or by both that imprisonment
and fine.
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(e) In any
action brought under this section resulting in a conviction or a
plea of nolo contendere, the court shall order the forfeiture and
destruction of all of those marks and of all goods, articles, or
other matter bearing the marks, and the forfeiture and destruction
or other disposition of all means of making the marks, and any and
all electric, mechanical, or other devices for manufacturing, reproducing,
transporting, or assembling these marks, which were used in connection
with, or which were part of, any violation of this section. However,
no vehicle shall be forfeited under this section that may be lawfully
driven on the highway with a class 3 or 4 license, as prescribed
in Section 12804 of the Vehicle Code, and that is any of the following:
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(1) A
community property asset of a person other than the defendant.
(2) The sole class 3 or 4 vehicle available to the immediate
family of that person or of the defendant.
(3) Reasonably necessary to be retained by the defendant for
the purpose of lawfully earning a living, or for any other
reasonable and lawful purpose.
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(f) As used
in this section, the following definitions shall apply:
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(1) When
counterfeited but unassembled components of computer software
packages are recovered, including, but not limited to, counterfeited
computer diskettes, instruction manuals, or licensing envelopes,
the number of "articles" shall be equivalent to the number
of completed computer software packages that could have been
made from those components.
(2) "At the point of sale" includes the entire building, structure,
container, or vehicle in which the sale or attempted sale
of an article has occurred.
(3) "Counterfeit mark" means a spurious mark which is identical
with, or substantially indistinguishable from, a registered
mark and which is used on or in connection with the same type
of goods or services for which the genuine mark is registered.
(4) "Knowingly possess" means that the person possessing an
article actually knew that the article was not genuine.
(5) "Sale" includes resale.
(6) "Value" has the following meanings:
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(A) When
counterfeit items of computer software are manufactured or
possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items
that are counterfeited.
(B) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited
to, counterfeited computer diskettes, instruction manuals,
or licensing envelopes, the "value" of those components of
computer software packages shall be equivalent to the retail
price or fair market price of the number of completed computer
software packages that could have been made from those components.
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(g) This section
shall not be enforced against any party who has adopted and lawfully
used the same or confusingly similar mark in the rendition of like
services or the manufacture or sale of like goods in this state
from a date prior to the effective date of registration of the service
mark or trademark pursuant to Chapter 2 (commencing with Section
14200) of Division 6 of the Business and Professions Code.
(h) An owner, officer, employee, or agent who provides, rents, leases,
licenses, or sells real property upon which a violation of subdivision
(a) or (d) occurs shall not be subject to a criminal penalty pursuant
to this section, unless he or she sells, or possesses for sale,
articles bearing a counterfeit mark in violation of this section.
This subdivision shall not be construed to abrogate or limit any
civil rights or remedies for a trademark violation.
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