Trademark CounterfeitingSecond ElementThe
Defendant's Trafficking or Attempt to Traffic Was Intentional
The statute contains two distinct mental state requirements. The
of these is the requirement that the defendant's trafficking be
This means that the government must show that the defendant trafficked in
goods or services deliberately or "on purpose." See Joint Statement
Trademark Counterfeiting Legislation 130 Cong. Rec. H12076 (daily ed. Oct.
1984)(hereinafter "Joint Statement").|C906|
Note that it is the trafficking and not the use of the counterfeit
which must be intentional. The statute does not require a showing of
intent to deceive or defraud the buyer. United States v. Gantos, 817
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.
A defendant need not be aware of the illegality of his conduct. United
v. Baker, 807 F.2d 427, 429 (5th Cir. 1986).
[cited in USAM 9-68.100]