Seattle Trademark Lawyer

Counterfeiting again.

That’s three posts in a row, but who’s counting?

This time counterfeiting got the perpetrator booted out of the country.

In Rodriguez-Valencia v. Holder, the Ninth Circuit last week upheld a Board of Immigration Appeals’ decision finding petitioner Jose Rodriguez-Valencia removable from the country and denying his application for cancellation of removal.

Mr. Rodriguez-Valencia was convicted of “willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark” in violation of section 350 of the California Penal Code. The BIA found the convictions constituted an aggravated felony as an “offense relating to … counterfeiting,” justifying the immigrant’s deportation to his home country.

Mr. Rodriguez-Valencia argued that the word “counterfeiting” in the statute was limited to counterfeiting money. He also argued the BIA needed to find that he had a specific intent to defraud. 

The BIA disagreed, and so did the Ninth Circuit, which found that an intent to defraud is inherent in the type of counterfeiting in which Mr. Rodriguez-Valencia engaged.

“While there may be some counterfeiting crimes that do not require an intent to defraud, assuming arguendo that the generic offense of counterfeiting requires such an intent, California Penal Code § 350 ‘is an inherently fraudulent crime.’ Indeed, ‘[a]ll of the conduct punished by [California Penal Code] § 350, ‘willfully manufactur[ing], intentionally sell[ing], or knowingly possess[ing] for sale any counterfeit … mark, ‘involve[s] knowingly false representations made in order to gain something of value.’ Because ‘[t]he commission of the crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both, we ‘have difficulty distinguishing such intent from a general intent to defraud.’”

The case cite is Rodriguez-Valencia v. Holder, 2011 WL 2899605, No. 09-72060 (9th Cir. July 21, 2011).