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1713

Trademark Counterfeiting—Second Element—The Defendant's Trafficking or Attempt to Traffic Was Intentional

The statute contains two distinct mental state requirements. The first of these is the requirement that the defendant's trafficking be "intentional." This means that the government must show that the defendant trafficked in the goods or services deliberately or "on purpose." See Joint Statement on Trademark Counterfeiting Legislation 130 Cong. Rec. H12076 (daily ed. Oct. 10, 1984)(hereinafter "Joint Statement").|C906

Note that it is the trafficking and not the use of the counterfeit mark which must be intentional. The statute does not require a showing of specific intent to deceive or defraud the buyer. United States v. Gantos, 817 F.2d 41, 42-43 (8th Cir.), cert. denied, 484 U.S. 860 (1987). See United States v. Torkington, 812 F.2d 1347, 1353 n. 7 (11th Cir. 1987). A defendant need not be aware of the illegality of his conduct. United States v. Baker, 807 F.2d 427, 429 (5th Cir. 1986).

[cited in USAM 9-68.100]