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Name: People v. Sy
Case #: D062163
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/21/2014

Intent to defraud is not an element of Penal Code section 350, subdivision (a) (manufacture, sale, or possession of a counterfeit mark). Appellants had a business selling handbags and jewelry. The merchandise bore the names of various registered trademarks although they were not authentic and appellants were not authorized retailers of the brands. Appellants were convicted by jury trial of selling or possessing counterfeit marks (Pen. Code, § 350, subd. (a)(2)) and placed on probation with restitution orders. On appeal, appellants challenged the sufficiency of the evidence supporting their convictions. Held: Affirmed. The Court of Appeal concluded that there was ample evidence that appellants both intentionally sold and knowingly possessed counterfeit marks. The fact that appellants’ customers were not confused about the authenticity of the merchandise was not significant because, unlike federal and state civil law, section 350 does not specifically require a counterfeit mark to be likely to cause confusion or mistake, or to deceive. Further, intent to defraud is not an element of the crime and the prosecution was not required to prove that the appellants acted with this intent.

Trial court properly awarded trademark owners restitution. Appellants also contended that the trial court abused its discretion by ordering them to pay restitution to the trademark owners because the trademark owners were not direct victims within the meaning of Penal Code section 1202.4, subdivision (k)(2). The court declined to decide this issue because section 350, subdivision (i) specifically states that the court shall order the defendant to pay restitution to the trademark owner and any other victims. Therefore, appellants’ claim that an order of restitution to the trademark holders was error was not supported.