People v. Ensley

PAUL G. FEINMAN, J. was held to be legally insufficient because there was no naming or describing of any trademark and no statement from the owner of the trademark that the videotapes in question contained any word, name, symbol, or device that was the registered trademark. In this case, there is not even an allegation concerning the "entity" that has adopted the trademark in question and which uses it to identify the goods it makes. The only description offered is that the trademark is owned by the Recording Association of America. There are also no allegations in the accusatory instrument that satisfy the statutory requirement of Penal Law § 165.70 (2) (b) that the alleged counterfeit trademark be found "identical" or "substantially indistinguishable" from the trademark in question (cf., People v Niang, 160 Misc 2d 500, supra [allegations that watches bore imitation of trademark for Rolex, and that they were of poor quality and did not have characteristics of actual Rolex, held insufficient; the People failed to offer proof that offending mark was identical with or substantially indistinguishable from registered trademark]). Sergeant Fagan states that the confiscated discs were of "inferior materials and workmanship," specifically that the printing was blurred, the coloring was off, and the booklets were not printed but photocopied. Again, there is no description of the trademark itself, and it must be noted that a compact disc is not itself a trademark. Rather, it is something that may carry a trademark. In short, the accusatory instrument is legally insufficient as there is nothing contained within the four corners of the instrument to establish the existence and identity of a registered trademark. Accordingly, there are insufficient allegations in the accusatory instrument to establish a prima facie case that defendant was selling goods bearing a counterfeit trademark. Defendant's motion to dismiss must therefore be granted.