Counterfeiting and Fraud

At first glance, many cases of counterfeiting may appear as fraud and vice versa. The base definition provides a connection between the two. Fraud is making individuals believe something in order to gain an unfair advantage, while counterfeiting is the low quality production of goods similar to those with serious economic value in order to gain an advantage. They can be electronics, food, car parts, even the physical bills themselves. What makes these two separate crimes is fraud’s reliance on deception, while counterfeiting relies on duplication.

At the end of the day, even victims of fraud are left with something real. Bad checks, deceptive pricing, jobs, services and some forms of payment have real value. A retailer creating fake MSRP price tags may trick a consumer into paying more, but they’re still going home with a real, functional TV. Even a fraudulent check is still a real check which, if there were funds in the account or a non-forged signature would be cashed normally. Fraud can also enter the territory of identity and credit theft.

Make no mistake. Fraud can still leave its victims in ruin. Sales schemes and credit theft create financial devastation that they may never recover from. However the components which go into the crime hold the value which they’re presented as.

Counterfeit products have little to no value and rely completely on transactions taking place. They impersonate a well known brand and use that to sell cheap, defective products at prices comparable to those with value. This occurs the most with designer fashion products, technology, mechanical parts and general consumer goods. Unlike fraud, this leaves the victim paying a high price for something that’s ultimately worthless. In some cases, the low quality may even put them at risk for injury or death.

Cash and checks which are counterfeited also hold no real value. Fraudulent checks may have forged signatures or be linked to accounts with insufficient funds, but they are real documents printed by a bank that allow a transaction to take place. Counterfeit checks are simply meant to make a consumer believe they have been paid. When it comes time to deposit the funds, they’ll be given the troubling news. Fraud cannot impact physical currency. Only counterfeiting can replicate bills and coins to make a purchase or provide change into real money.

It’s important to remember the offenders may potentially face charges for both counterfeiting and fraud. Every case is handled on an individual basis and heavily relies on the business practices which led to the committing of a crime.

The Counterfeit Trial Process

Going to trial is hard. Many individuals describe it as the single most stressful experience of the life. Families are shaken to the core and many feel as if all hope is lost. Counterfeiting case are especially hard, since an individual may have never been guilty in the first place. The trial process for cases of these nature very slightly from the average criminal trial.

Discovery of a Crime

If a counterfeit bill or product has properly done its job, it may go unnoticed forever. However, more often than not, it’s only designed to be a pass for a period of time. It will fool the consumer and several people so the criminal can make a clean break and profit. Eventually, someone with a keen eye catches on.

Once a false product is reported, businesses and individuals must immediately contact law enforcement. Individuals will be encouraged to stay on the premises or face additional charges later. All of the suspected merchandise or currency will be confiscated until the closure of the investigation.

Investigation

It may surprise you to find out that the Secret Service investigates counterfeiting crimes. While they’ve been known to guard political figures and critical government buildings, they were originally created to prevent counterfeiting. This part of the process involves questioning, tests and evidence collection, possibly with a short stay in jail.

If you or a loved one have become caught up in a counterfeiting investigation, cooperation is crucial. Never withhold information or become difficult to work with.

Defense

The entirety of a counterfeiting case hinges upon knowledge and intent. More specifically, whether the individual passing fake money or products knew of its illegal origin, and whether they meant to capitalize off a well known brand. Very few cases are clear cut with individuals being caught red handed during production or with clear evidence of their knowledge and intent.

Additional charges may be applied to the case, such as manslaughter or fraud depending on what crimes were committed in connection with counterfeiting. These are handled on a case by case basis and will rely on defenses specific to those charges.

An important thing to note is the connection between trademark counterfeiting and infringement. The court sees these as similar crimes. Although counterfeiting carries far greater penalties, if a defendant makes a successful defense for infringement, they cannot be tried for counterfeiting.

Counterfeiting Isn’t a Single Offense

More often than not, the act of falsifying one product or currency may result in a list of offenses. Make no mistake, the legal system does not look favorably upon those facing trial for counterfeiting charges. Judges will often use these associated crimes to further the available penalties. This can mean longer jail sentences, bigger fines and, in some cases, life imprisonment.

These are some of the charges which may be added to counterfeiting cases.

Patent/Trademark Infringement

The goal of knock off products is to create a cheap item closely resembling one of high value, using the established brand’s image to make a high priced sale. These brands which they hope to resemble count as intellectual property, therefore falling under copyright and trademark laws.

Counterfeit or not, any products which closely resemble the design, look or logo of an existing brand are at risk of a lawsuit. These eight specific elements determine whether or not a product is in violation of copyright and trademark laws.

  • Strength of the mark
  • Proximity of the goods
  • Similarity of the mark
  • Evidence of actual confusion
  • Marketing channels used
  • Type of goods and the degree of care likely the be exercised by the purchaser
  • Defendant’s intent when creating the mark
  • Likelihood of expansion of the product lines

Fraud

Selling a product which misrepresents itself or pretends to be another product is fraud. Consumers may pay full retail or suspiciously low prices to receive products which imitate designer fashion apparel, electronics and more. Many times, these products were never intended to work or function as expected.

Murder or Manslaughter

Cases entering this territory may be few and far between, but they are possible. Cheap, defective products can injure, or maim consumers when they fail. Counterfeit brakes, for example, may fail when a driver least expects it, causing a tragic accident. Food items and medicine may be made with toxic chemicals or contain ingredients not listed on the packaging.

Before a criminal can be tried for a more serious offense in connection to counterfeiting, it must first be established that the individual’s injury or death was solely the cause of the product. Additionally, whether the counterfeiter knew of the risks when producing or selling the product.

Penalties of Counterfeiting

Fake products hoping to make a quick buck by imitating a larger brand can cause great harm to people, while reproduced money can destabilize an economy. Both of these are incredibly dangerous, therefore the penalties are harsh.

Determining guilt and the amount of punishment relies on several variables. Most incidents will be determined on a case-by-case basis, but these are the basic foundations for each case.

Counterfeit Products

Offenses under this category can either wrap up smoothly or lead to complex trials with charges entering other categories. Some will end in a lawsuit settlement or a definite jail sentence depending on whether it was simple production and sales or relied on child labor, used toxic components which harmed others or obviously relied on fraud.

No matter what, the business venture will end. Any merchandise left over will be confiscated along with any tools specifically used to replicate parts of a brand. A damage lawsuit may be placed by the brand being counterfeited which can be up to three times the profits or damages, whichever is greater. In some instances the case will start with a cease and desist. If your business has been accused of selling counterfeit merchandise that replicates a brand, do not ignore this. The better option is to always cease sales and then dispute your sales rights outside of the courtroom.

Counterfeit Money

Regardless of how it happens, the creation of passing of fake money is a federal crime. Even unknowingly using the money for purchases is liable to put an individual in court. Once in court, whether or not it was consciously done is determined by a judge based on evidence. If it’s deemed an individual knowingly passed fake money, they could face up to a $15,000 fine or 15 years in prison.

Production of false money carries the most severe charges. Offenders can face a fine of up to $250,000 and a maximum sentence of 20 years. Possession of plates, stones or other high-end production tools can up the sentence to 25 years. If their crime results in a financial gain or loss, they may also be fine double that amount.

Counterfeit Money is a Major Issue

Despite the advanced steps the U.S. Department of Treasury are taking, an estimated $70 million in counterfeit bills are currently in circulation. That equates to about one in every 10,000 notes being fake (source). Efforts are always underway to reduce the amount and catch those responsible, however new contributions of counterfeit money are made every day.

Fake money isn’t just a nuisance for those who accidentally receive it in a transaction. It can destroy an economy. Inflation can sky rocket, reducing the value of paper currency and driving prices through the roof. It de-legitimizes cash and runs the risk of it no longer being an acceptable form of payment. Businesses run the risk of bankruptcy when reported phony bills are confiscated without reimbursement.

Counterfeiters are getting better every day. While Euros remain one of the easiest to falsify currencies, the U.S. dollar is very near the top as well. With everything from industrial grade machinery to printers from the office supply store, criminals have replicated currency to make purchases or exchange for real bills. A new term, the “superdollar,” even references the superior quality of some newer bills. These are prized for their high quality and similarities to a real dollar.

Luckily, most traditional counterfeiting measures work well enough for an everyday person to spot a fake. Things such as raised print surfaces and milled coins to expose whether or not it’s made of a different metal. However breakthroughs in print technology in recent decades have allowed a number of other new features such as:

  • Threads of microscopic numbers or text.
  • Smaller images, visible under a microscope, hidden within text or other images.
  • Holograms
  • Ink or fibers only visible under UV light.
  • Color-changing ink
  • Alternative materials, such as plastic or a secret recipe.

Government agencies are also always patrolling for fraudulent cash production centers. Whether it’s a full bust leading to arrests and confiscating, or simply catching it in transit before it can be spent, their goal is to slow its entry into the economy. Law enforcement take action against it every day, often finding counterfeit currency in the process of investigating other crimes. The largest bust ever recorded happened as recently as November of 2016, with $30 million taken by U.S. and Peruvian authorities during a single sting operation.