638:6-b Dealing in Counterfeit Goods. –
I. In this section, "counterfeit mark" means a spurious mark that:
(a) Is applied to, or attached to, or used in connection with in any way, any goods, or packaging of such goods, or any other component of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with any goods;
(b) Is identical to, or substantially indistinguishable from, a mark registered under RSA 350-A, or the laws of any other state, or that is recorded on the principal register in the United States Patent and Trademark Office and is in use, whether or not the defendant knew the mark was registered; and
(c) By the application or use of such mark, is likely to cause confusion, to cause mistake, or to deceive.
II. Any person who purposely or knowingly manufactures, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell, or distributes any goods bearing or identified by a counterfeit mark shall be guilty of a class A misdemeanor for a first offense and a class B felony for any subsequent offense. Each individual good bearing or identified by a counterfeit mark shall constitute a separate offense.
III. Evidence that a person had possession, custody, or control of more than 25 items bearing a counterfeit mark shall be prima facie evidence that the person had possession with the intent to sell or distribute the items.
IV. Any goods that bear or consist of a counterfeit mark used in committing a violation of this section shall be subject to forfeiture to the state of New Hampshire and no property right shall exist in such property. At the conclusion of all criminal proceedings, the court shall order such items be destroyed or disposed of in another manner with the written consent of the trademark owner.
V. (a) The following property is subject to forfeiture for an offense under this section:
(1) Any property used by the defendant in any manner to facilitate, aid, or abet, a violation of this section; and
(2) Any property constituting or derived from any proceeds obtained by the defendant, either directly or indirectly, as a result of a violation of this section.
(b) Such property may be seized by a law enforcement agency for forfeiture as follows:
(1) Pursuant to a search warrant or seizure warrant on an affidavit under oath demonstrating that probable cause exists for its forfeiture;
(2) Physically, on probable cause to believe that the property is subject to forfeiture; or
(3) Constructively, on probable cause to believe that the property is subject to forfeiture under this section, by recording a notice of pending forfeiture in the registry of deeds in the county where the real property is located or at the town clerk's office where the person's property is located stating that the state intends to seek forfeiture of the identified property pursuant to this section.
(c) A seizure for forfeiture without process under subparagraph (b)(2) or (b)(3) shall be reasonable if made under circumstances in which a warrantless seizure or arrest would be valid in accordance with state law.
(d) The seizing agency shall notify the defendant within 7 days of any seizure of property of its intent to forfeit the property pursuant to this section.
(e) The forfeiture of any property or item under this paragraph shall be governed by RSA 595-A:6. The state shall have the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. Except in the case of proceeds, upon a finding that the property is subject to forfeiture, the court shall determine whether the forfeiture of the property is not excessive in relation to the underlying criminal offense. In making this determination, the court shall consider whether in addition to any pertinent considerations:
(1) There is a substantial connection between the property to be forfeited and the underlying offense;
(2) Criminal activities conducted by or through the use of the property were extensive; and
(3) The value of the property to be forfeited greatly outweighs the cost of prosecution and the harm caused by the criminal conduct.
(f) Final orders for forfeiture shall be implemented by the seizing agency and all proceeds of the forfeiture shall go to that agency.
(g) At the request of any party to the forfeiture proceeding, the court shall grant a continuance until the final resolution of any criminal proceedings which were brought against a party under this section and which arose from the transaction which gave rise to the forfeiture proceeding. No party's interest in property shall be forfeited unless a party has been found guilty of the underlying charge.
VI. The court may order a person convicted under this section to pay restitution pursuant to RSA 651:63 to the trademark owner and to any other person the court may determine. Any restitution ordered by the court shall include, but is not limited to, attorney's fees, court costs, and any other expenses incurred by the trademark owner in the investigation and prosecution of the case.
Source. 2009, 209:9. 2010, 312:1, eff. July 13, 2010.