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Counterfeit: What is it? Is it a crime to sell counterfeit goods? When is crime buy fake products? What is fake coarse?
The phenomenon of counterfeiting is an authentic scourge for legal commerce: it is a real parallel market that very often collects success even more than that of original products. This is because counterfeit goods meet consumer support who, instead of spending exorbitant amounts for a signed item (suit or accessory), prefers to fall back on something very similar (sometimes identical) and, above all, by far Less expensive. With this article we will dwell on a particular type of counterfeit product: watches. In the next paragraphs we will see what are replica watches and whether it is legal to sell them.
Replica watches: What are they?
Replica watches are nothing more than faithful reproductions of original watches, i.e. objects produced by the parent companies and on which their brand is affixed. The replica watches, said in two words, are counterfeit watches, just like the bags, shoes and many other clothing. They are called “replica” because they are completely similar, if not identical, to the originals, so much so that, very often, even a connoisseur has difficulty recognizing counterfeiting.
Counterfeit: Is it legal?
Of course, the counterfeiting of original products constitutes a crime. According to the Penal Code, anyone who counterfeits or alters distinctive marks, domestic or foreign of industrial products, or makes use of such trademarks or signs counterfeit or altered, is punished by imprisonment from six months to three years and with a fine from 2,500 to 25 thousand euros.
Replica watches: Is it legal to buy them?
Before you see if it’s legal to sell replica watches, let’s get on the side of the consumer and explain if it’s legal to buy counterfeit goods. The Italian law provides for two different types of crime that can refer to those who buy goods from a crime: the Receiving and the careless purchase.
According to the Penal Code, you have a prescription when a person, in order to procure to himself or others a profit, buys, receives or occult money or things from a crime, or in any case intrudes in making them buy, receive or conceal. The penalty is the imprisonment of two to eight years.
It is the offence of careless purchase, however, when a person, without having first ascerted the legitimate provenance, buys or receives in any way things, which, because of their quality or the condition of those who offer them or for the amount of the price, have reason to Suspect that they come from crime. The penalty is stopping up to six months.
Buy replica watches: When is it receiving?
Explain the two cases of crime, let’s see if buying replica watches constitutes a criminal offence. According to the Court of Cassation, it does not commit a crime who buys a counterfeit product (and, therefore, also a replica watch), provided that the purchase is destined for an exclusively personal use. This is because the law sanctions only those who are included in the production circle or distribution of the counterfeit product, but not those who use it for purely personal purposes.
On the contrary, anyone who buys a good that knows to come from a crime (theft, robbery, but also counterfeiting, constituting a crime), or, while having no certainty, can easily imagine that it may be the result of an illicit offence, in the crime of Receiving if that good is not intended for itself but to be sold to third parties, even if only given.
In fact, for the purchase of replica watches, i.e. of watches entirely identical to the original ones, it is easy to incur the crime of fencing if the purchase is not for personal use, as the price incredibly low (think of a Rolex sold a few tens of Induces any buyer to understand that it is a hoax.
Instead, if the replica watch were to be sold at a “plausible” price, i.e. analogous to the original product, then the buyer will not incur the crime of receiving the reciever, as he is completely deceived by the seller who has passed him off for Original a counterfeit watch. In this case, the buyer is injured party and may file a complaint/lawsuit for fraud and counterfeiting.
Purchase replica watches: When it is reckless purchase
More slight is the hypothesis of careless purchase, in which it inruns those who buy a counterfeit goods or, however, coming from crime when he could well have imagined that the merchandise itself was criminal. In a nutshell, while the crime of fencing takes place when the buyer knowingly or consciously accepts the risk that the product is counterfeit, in the case of the careless purchase the buyer buys the goods by naivety, although he had to hypothesize that Came from the black market.
Purchase replica watches: Administrative sanction
Irrespective of the penalty, those who buy counterfeit goods incur an administrative sanction. As, in fact, it has been able to clarify the Court of Cassation, the final purchaser of a product with a counterfeit trademark or in any case of origin and provenance other than the one indicated is liable for administrative wrongdoing and not of receptation. The penalty to be paid goes from one hundred to seven thousand euros.
Replica watches: Is crime selling them?
We now come to the main point of this article: Is it legal to sell replica watches? The answer is clear from what has been said so far: counterfeiting is a crime and, therefore, selling false objects, albeit identical to the originals, constitutes a crime, provided that there is an awareness. In other words, the retail trader who sells replica watches believing that they are original, does not commit offense; On the contrary, it will incur in criminal offence the one who knowingly, in order to gain profit, puts on the market counterfeit goods.
Specifically, the law says that, out of the cases of competition in the activity of counterfeiting itself, anyone holding for sale, poses for sale or otherwise puts in circulation in order to profit from it, counterfeit products, is punished with imprisonment until To two years and with the fine up to 20 thousand euros.
In addition, the law provides for the confiscation of counterfeit goods and, unless the fact constitutes a more serious offence, the administrative penalty from twenty thousand to one million euro if the same purchase is made by a trader or a different person By the final purchaser.
Counterfeiting: When is it not punishable?
The case law has excluded the punibility of the seller that offers the public a counterfeit product so bad that it can not be passed off for original in any way . This is the so-called fake Grossolano, that is that counterfeit so obvious that it can not deceive anyone. Classic example is that of the Hawker who sells in the street (if anything on a sheet lying on the ground) watches of great prestige a few euros.
But why is the fake coarse not punished? Because the rules on counterfeiting aim to protect the public faith, that is, the entrusting of the subsidiaries in the distinctive marks or signs that identify the works of ingenuity or industrial products and guarantee their circulation. Therefore, when falsification is not likely to mislead consumers, causing confusion between the original and the non-authentic products, we cannot even speak of a crime.
To have to be precise, however, it should also be said that there are isolated pronunciations of the contrary, that is, judgments that have punished even the obvious counterfeiting.
Finally, it is noted that the guideline (true, absolutely minority) that trade in counterfeit goods is not criminally relevant if justified by the state of necessity of the seller and by the small number of counterfeit products. This is a very peculiar application of the scriminante foreseen in the Penal Code, due to the absolutely majority orientation that the state of necessity cannot apply to offences against the inheritance or which, however, offend the Trade.