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1717

Trademark Counterfeiting—Fourth Element -- The Defendant Knew the Mark Was Counterfeit

The second mental state requirement of the statute is that the defendant "knew" the mark used on or in connection with the goods or services in which he trafficked was counterfeit. Such knowledge is established by proof that the defendant "had an awareness or firm belief to that effect." Joint Statement on Trademark Counterfeiting Legislation, 130 Cong. Rec. H12076 (daily ed. Oct. 10, 1984) (hereinafter "Joint Statement").

The Joint Statement indicates that the government's burden can also be satisfied by showing that the defendant was "willfully blind" to the counterfeit nature of the mark. Id. at H12077. See also United States v. Sung, 51 F.3d 92, 94 (7th Cir. 1995), appeal after remand, 87 F.3d 194 (1996) (remanded for resentencing). The government need not prove that it was the defendant's purpose or objective to use a counterfeit mark, but only that the defendant knew that he or she was doing so. Id.

[cited in USAM 9-68.100]