KRS 365.241: Counterfeiting intellectual property -- Penalties -- Disposition of

property.

(1) As used in this section:

(a) "Counterfeit mark" means:

1. Any unauthorized reproduction or copy of intellectual property; or

2. Intellectual property knowingly affixed to any item without the

authority of the owner of the intellectual property.

(b) "Intellectual property" means any trademark, service mark, trade name,

label, term, device, design, or word adopted or used by a person to

identify the person's goods or services.

(c) "Person" includes, in addition to its meaning under KRS 446.010, any

association, organization, or entity amenable to suit in a court of law.

(d) "Retail value" means the counterfeiter's regular selling price for the item

or service bearing or identified by the counterfeit mark. In the case of

items bearing a counterfeit mark which are components of a finished

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.

(2) Any person who willfully manufactures, uses, displays, advertises, distributes,

offers for sale, sells, or possesses with intent to sell or distribute any item or

service that the person knows bears or is identified by a counterfeit mark shall

be guilty of counterfeiting.

(3) A person having possession, custody, or control of more than twenty-five (25)

items that the person knows bear or are identified by a counterfeit mark shall

be presumed to possess the items with the intent to sell or distribute.

(4) Any person who violates the provisions of this section shall be guilty of a Class

A misdemeanor, except where the person has been previously convicted of a

violation of this section or the violation involves more than one hundred (100)

items bearing a counterfeit mark or the total retail value of all items bearing, or

services identified by, a counterfeit mark is more than one thousand dollars

($1,000), in which case the person shall be guilty of a Class D felony. Unless

reduced by the court for extenuating circumstances and notwithstanding KRS

Chapter 534, upon conviction the offender shall, in addition to any other

allowable disposition, be fined an amount equal to the greater of:

(a) Three (3) times the retail value of the items bearing, or services identified

by, the counterfeit mark;

(b) Double the amount of the defendant's gain from commission of the

offense; or

(c) As otherwise allowed in KRS Chapter 534 for felonies and

misdemeanors.

(5) For purposes of this section, 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 manufactures,

uses, displays, advertises, distributes, offers for sale, sells, or possesses.

(6) Except for items in the possession of a person not in violation of this section,

any items bearing a counterfeit mark, and all personal property, including but

not limited to, any items, objects, tools, machines, equipment, instrumentalities,

or vehicles of any kind, employed or used in connection with a violation of this

section shall be seized by any law enforcement officer.

(a) Except as otherwise provided in this subsection, all personal property

seized under this subsection shall be forfeited in accordance with KRS

431.100.

(b) Upon request of the intellectual property owner, all seized items bearing a

counterfeit mark shall be released to the intellectual property owner.

(c) If the intellectual property owner does not request release of seized items

bearing a counterfeit mark, the items shall be destroyed unless the

intellectual property owner consents to another disposition.

(7) Any state or federal certificate of registration of any intellectual property shall

be prima facie evidence of the facts stated in the certificate.

(8) The remedies provided in this section shall be cumulative to other civil and

criminal remedies provided by law.

(9) Notwithstanding any statute to the contrary, fines imposed under this section

shall be paid into the crime victims' compensation fund established in KRS

49.480.