This section defines counterfeit mark terms and makes it an offense to intentionally traffic in counterfeit marks or items or services linked to them.
Sec. 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 Section 16.105, Business & Commerce Code, or by 36 U.S.C. Section 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 Section 16.001, Business & Commerce Code. (6) "Trademark" has the meaning assigned by Section 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. (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. Added by Acts 1997, 75th Leg., ch. 1161, Sec. 2, eff. Sept. 1, 1997. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 563 (H.B. 3141), Sec. 2, eff. September 1, 2012. Acts 2015, 84th Leg., R.S., Ch. 1251 (H.B. 1396), Sec. 15, eff. September 1, 2015.