Florida Statutes Fraudulent Trademark Registration

495.121 fl Statutes Fraudulent registration.–Any person who shall for herself or himself, or on behalf of any other person, procure the filing or registration of any mark with the Department of State under the provisions hereof, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, and for punitive or exemplary damages, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.

495.131 Infringement.–Subject to the provisions of s. 495.161, any person who shall, without the consent of the registrant:
(1) Use any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, to cause mistake, or to deceive; or
(2) Reproduce, counterfeit, copy, or colorably imitate a mark registered under this chapter and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, to cause mistake, or to deceive;

shall be liable in a civil action by the owner of such registered mark for any or all of the remedies provided in s. 495.141, except that under subsection (2) hereof the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.
495.141 Remedies.–
(1) Any owner of a mark registered under this chapter may proceed by suit to enjoin the manufacture, use, display, or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display, or sale and to pay the costs of the action; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case be delivered to an officer of the court, or to the complainant, to be destroyed. In assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed. In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not a penalty. The court may also award reasonable attorney’s fees to the prevailing party according to the circumstances of the case.
(2) The enumeration of any right or remedy herein shall not affect a registrant’s right to prosecute under any penal law of this state.
History.–s. 1, ch. 67-58; s. 15, ch. 2006-191.

Title XXXIII
REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS Chapter 495
REGISTRATION AND PROTECTION OF TRADEMARKS View Entire Chapter

495.181 Construction of chapter.–The intent of this chapter is to provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the Trademark Act of 1946, as amended. To that end, the construction given the federal act should be examined as persuasive authority for interpreting and construing this chapter.
History.–s. 7, ch. 90-222; s. 20, ch. 2006-191.

495.145 Forum for actions regarding registration.–An action seeking cancellation of a registration of a mark registered under this chapter may be brought in any court of competent jurisdiction in this state. Service of process on a nonresident registrant may be made in accordance with s. 48.181. The department shall not be made a party to cancellation proceedings.

CANCEL HIS MARK

495.161 Common-law rights.–Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.

Criminal Chpater XLVI, Chapter 831 Florida Statues Violation of 831.03 Forging or counterfeiting private labels; possession of reproduction materials.?

831.03 Forging or counterfeiting private labels; possession of reproduction materials.–
(1) Whoever, knowingly and willfully, forges or counterfeits, or causes or procures to be forged or counterfeited, upon or in connection with any goods or services, the trademark or service mark of any person, entity, or association, which goods or services are intended for resale, or knowingly possesses tools or other reproduction materials for reproduction of specific forged or counterfeit trademarks or service marks shall be guilty of the crime of counterfeiting. The crime of counterfeiting shall be punishable as follows:
(a) If the goods or services to which the forged or counterfeit trademarks or service marks are attached, affixed, or used in connection with, or to which the offender intended they be attached, affixed, or used in connection with, have a retail sale value of $1,000 or more, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the goods or services to which the forged or counterfeit trademarks or service marks are attached, affixed, or used in connection with, or to which the offender intended they be attached, affixed, or used in connection with, have a retail sale value of less than $1,000, the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) When an offender has in the last 5 years been convicted of counterfeiting under this section, or vending counterfeit goods under s. 831.05, and is convicted of counterfeiting goods or services, irrespective of their retail sale value, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) All defenses, affirmative defenses, and limitations on remedies that would be applicable in an action under the Lanham Act, 15 U.S.C. ss. 1051 et seq., or to an action under s. 495.131 shall be applicable in a prosecution under this section.
(3) The term “forged or counterfeit trademark or service mark” refers to a mark:
(a) That is identical with or an imitation of a mark registered for those goods or services on the principal register in the United States Patent and Trademark Office or the trademark register for the State of Florida or any other state, or protected by the Amateur Sports Act of 1978, 36 U.S.C. s. 380, whether or not the offender knew such mark was so registered or protected; and
(b) The use of which is unauthorized by the owner of the registered mark.
(4)(a) Any goods to which the forged or counterfeit trademarks or service marks are attached or affixed, or any tools or other reproduction materials for the reproduction of any specific forged or counterfeit trademark or service mark, which are produced or possessed in violation of this section, may be seized by any law enforcement officer and shall be destroyed upon the written consent of the offender or by judicial determination that the seized goods, tools, or other reproduction materials have attached or affixed to them a forged or counterfeit trademark or service mark, unless the owner of the registered or protected trademark or service mark which has been forged or counterfeited approves a different disposition. The owner of the registered or protected trademark shall be responsible for the actual costs incurred in the disposition of said forged or counterfeited goods.
(b) Any personal property, including, but not limited to, any item, object, tool, machine, or vehicle of any kind, employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, the crime of counterfeiting, as proscribed by paragraphs (1)(a)-(c), and not otherwise included in paragraph (a), may be seized and is subject to forfeiture pursuant to ss. 932.701-932.704.

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