When Counterfeit Allegations Threaten Everything
Being accused of selling counterfeit goods in Georgia is not a paperwork problem—it is a criminal accusation that can destroy a business, a professional license, and a reputation built over decades. Prosecutors often treat these cases as easy wins, assuming that branding disputes equal criminal intent. Judges, however, know better.
At The Sherman Law Group, we approach O.C.G.A. § 10-1-454 cases with one overriding principle: counterfeit prosecutions collapse when intent, proof, and procedure are tested under real legal scrutiny. These cases live or die on nuance—what the seller knew, when they knew it, how the goods were sourced, and whether law enforcement respected constitutional limits.
What follows is not a generic list. It is a defense framework used by elite Georgia criminal defense lawyers, designed to dismantle counterfeit-goods prosecutions at every stage—from investigation through jury deliberations.
Knowledge, Intent, and Mental State Defenses
1. Lack of Knowledge of Counterfeit Nature
The statute requires proof that the accused knew the goods were counterfeit. Many sellers rely on distributors, wholesalers, or liquidation channels and reasonably believe items are genuine. Without proof of subjective knowledge, the State’s case fails.
2. No Intent to Deceive or Defraud
Selling an item without any intent to mislead buyers undermines criminal liability. Honest pricing, transparent descriptions, or open acknowledgment of uncertainty defeats intent.
3. Good-Faith Belief Goods Were Authentic
A seller acting in good faith—based on invoices, supplier assurances, or past legitimate dealings—lacks criminal intent even if goods later prove counterfeit.
4. Reliance on Supplier Representations
If a supplier represented the goods as authentic, liability shifts away from the seller. Georgia law does not impose strict liability for counterfeit sales.
5. Absence of Willful Blindness
The State often alleges the defendant “should have known.” But negligence is not knowledge. Absent proof of deliberate avoidance, criminal intent is lacking.
6. No Conscious Disregard of Obvious Counterfeiting
Subtle counterfeits require expert analysis. If authenticity issues were not obvious to a reasonable seller, intent cannot be inferred.
7. Mistake of Fact
A factual misunderstanding—such as believing goods were gray-market or overstock—negates criminal mens rea.
8. Lack of Training or Expertise
Many sellers are not brand experts. The State must show the accused had sufficient expertise to recognize counterfeits.
9. First-Time Seller Defense
Inexperience supports lack of knowledge. First-time transactions are especially vulnerable to supplier fraud.
10. No Prior Warnings or Cease-and-Desist Notices
Without prior notice from brands or law enforcement, knowledge is harder to establish.
Product Authenticity & Proof Defenses
11. Failure to Prove Goods Are Counterfeit
The State bears the burden of proving the items are counterfeit, often requiring expert testimony. Weak or absent authentication is fatal.
12. Goods Are Lawfully Branded
Parallel imports, surplus goods, or factory overruns may be lawful despite branding similarities.
13. No Registered Trademark
If the alleged mark is not properly registered or protected, counterfeit claims collapse.
14. Generic or Non-Protected Mark
Generic symbols or designs are not counterfeit trademarks under Georgia law.
15. Substantial Differences Defense
If the product is clearly distinguishable from the genuine article, deception is implausible.
16. Mixed Inventory Defense
The presence of some counterfeit items does not establish knowledge as to all goods sold.
17. No Chain of Custody
Improper handling or storage of seized goods raises doubts about authenticity testing.
18. Improper Expert Qualification
Brand representatives are not automatically qualified forensic experts.
19. Flawed Authentication Methods
Visual inspection alone is often unreliable and insufficient.
20. Absence of Serial Number Verification
Failure to verify serial numbers undermines authenticity conclusions.
Transaction & Sales Context Defenses
21. No Completed Sale
Possession alone is not enough; the statute targets selling or offering for sale.
22. Private, Non-Commercial Transaction
Casual, isolated transactions lack commercial intent.
23. Goods Not Offered to the Public
Internal transfers or private exchanges fall outside the statute’s scope.
24. No Advertising or Marketing
Absence of promotional activity weakens the claim of intent to sell.
25. Returned or Rejected Inventory
Goods awaiting return were not being sold.
26. Consignment Without Knowledge
Consignors may be unaware of item authenticity.
27. Online Platform Reliance
Sellers often rely on marketplace safeguards and representations.
28. Platform Policy Compliance
Following platform rules demonstrates good faith.
29. No Pricing Indicative of Counterfeiting
Pricing consistent with genuine goods undercuts inference of knowledge.
30. Disclosure of Uncertainty
Statements like “as-is” or “unknown authenticity” defeat deception.
Investigative & Constitutional Defenses
31. Illegal Search and Seizure
Warrantless searches violate the Fourth Amendment.
32. Overbroad Search Warrants
General warrants invalidate seizures of inventory.
33. Lack of Probable Cause
Suspicion alone does not justify enforcement actions.
34. Unlawful Traffic Stop or Inspection
Improper stops taint evidence.
35. Miranda Violations
Statements obtained unlawfully must be suppressed.
36. Coerced Confessions
Pressure or intimidation invalidates admissions.
37. Selective Enforcement
Targeting certain sellers without neutral criteria violates equal protection.
38. Entrapment
Government inducement of sales defeats prosecution.
39. Informant Credibility Issues
Unreliable informants undermine the case.
40. Evidence Tampering or Contamination
Compromised evidence is inadmissible.
Statutory & Procedural Defenses
41. Failure to Meet Statutory Elements
Every element must be proven beyond a reasonable doubt.
42. Misapplication of O.C.G.A. § 10-1-454
Civil trademark disputes are often mischarged as crimes.
43. Statute of Limitations
Expired limitations bar prosecution.
44. Improper Venue
Charges must be brought in the correct county.
45. Multiplicity of Charges
Multiple counts for a single act violate due process.
46. Vagueness Challenge
Ambiguous application of the statute violates constitutional notice.
47. Preemption by Federal Law
Certain trademark issues fall under federal jurisdiction.
48. Civil vs. Criminal Remedy
The matter may belong in civil court, not criminal.
49. Lack of Victim Complaint
Absence of brand-owner involvement weakens the case.
50. Failure to Preserve Evidence
Destroyed or lost evidence favors dismissal.
Business, Equity, and Sentencing Defenses
51. Legitimate Business History
A long record of lawful commerce supports credibility.
52. Compliance Programs in Place
Internal safeguards demonstrate lack of criminal intent.
53. Corrective Action Taken
Immediate removal of goods shows responsibility.
54. Cooperation Without Admission
Lawful cooperation can mitigate or defeat charges.
55. Minimal Quantity of Goods
De minimis amounts undercut criminal seriousness.
56. No Consumer Harm
Absence of harm weighs against prosecution.
57. No Financial Gain
Lack of profit undermines motive.
58. Restitution Offered
Good-faith remediation supports leniency or dismissal.
59. Alternative Dispute Resolution
Civil settlement may resolve the matter entirely.
60. Pretrial Diversion Eligibility
First-time offenders may qualify for dismissal programs.
Advanced & Strategic Defenses
61. Supplier Fraud Defense
The seller is the true victim of upstream fraud.
62. Gray-Market Defense
Lawfully manufactured goods sold outside authorized channels are not counterfeit.
63. Exhaustion Doctrine
Trademark rights may be exhausted after first sale.
64. Laches or Delay
Unreasonable enforcement delay prejudices the defense.
65. Inconsistent Enforcement Evidence
Selective prosecution weakens legitimacy.
66. Brand Overreach Defense
Aggressive brand policing often mislabels lawful goods.
67. Insufficient Valuation Evidence
Inflated loss calculations affect charge severity.
68. Misidentification of Seller
Online accounts or employees may be responsible.
69. Corporate Veil Issues
Individual liability requires personal knowledge.
70. Employment Scope Defense
Acts outside job duties do not bind employers.
Trial & Jury-Based Defenses
71. Credibility of Law Enforcement Witnesses
Inexperience with trademark law weakens testimony.
72. Jury Confusion Defense
Complex trademark issues create reasonable doubt.
73. Common Industry Practices
Normal sourcing practices negate criminality.
74. Absence of Consumer Complaints
Happy customers undermine deception claims.
75. Alternative Innocent Explanations
Multiple plausible explanations defeat certainty.
76. Burden-Shifting Objections
The defense has no duty to prove authenticity.
77. Improper Prosecutorial Argument
Inflammatory rhetoric invites mistrial or reversal.
78. Jury Nullification Themes
Overcriminalization resonates with jurors.
79. Disproportionate Punishment Argument
Penalties far exceed alleged wrongdoing.
80. Reasonable Doubt Emphasis
Trademark cases rarely meet criminal certainty.
Final Protective Defenses
81. Innocent Owner Defense
Ownership alone does not equal guilt.
82. No Control Over Inventory
Lack of control negates responsibility.
83. Business Partner Misconduct
Partners’ acts are not automatically attributable.
84. Insufficient Evidence Overall
When evidence is weak, dismissal is required.
85. Totality of Circumstances Defense
Viewed holistically, the facts do not support criminal guilt.
Judge’s Perspective vs. Prosecutor’s Perspective: How These Cases Are Really Evaluated
The Prosecutor’s Lens
Prosecutors tend to view counterfeit cases as brand-protection matters. They focus on volume of goods, appearance of logos, and pricing, often inferring intent from circumstantial factors alone. Many assume juries will be offended by the idea of “fake goods” and will shortcut the legal analysis.
The Judge’s Lens
Judges are far more exacting. They focus on mens rea, statutory precision, constitutional compliance, and evidentiary reliability. Judges know that trademark disputes frequently masquerade as crimes and that criminal liability requires far more than suspicion or brand complaints.
What Wins in Court
Cases are dismissed, reduced, or suppressed when defense counsel forces the court to confront missing elements, weak authentication, unlawful searches, and overcharging. Judges respond to lawyers who treat these cases as serious criminal matters—not moral panics about logos.
Defense Matrix: How Elite Defense Strategies Defeat Counterfeit Charges
Defense Category | Prosecutor Claim | Defense Response | Judicial Impact |
Knowledge & Intent | “They should have known” | Negligence ≠ criminal knowledge | High dismissal potential |
Authenticity Proof | Brand says it’s fake | Expert & chain-of-custody challenges | Evidentiary suppression |
Search & Seizure | Routine inspection | Warrant defects & overreach | Case-ending rulings |
Sales Context | Goods offered for sale | No completed transaction | Charge reduction |
Business Practices | High volume implies guilt | Industry norms & sourcing | Reasonable doubt |
Valuation | Inflated losses | Failure to prove value | Sentencing mitigation |
This matrix is why experienced judges often view these cases skeptically when defended properly.
Companion Analysis: 50 Prosecution Mistakes in Counterfeit Goods Cases
- Charging civil trademark disputes as crimes
- Failing to prove knowledge beyond speculation
- Relying on unqualified brand witnesses
- Using visual inspection instead of forensic analysis
- Executing overbroad search warrants
- Ignoring gray-market defenses
- Inflating valuation figures
- Charging possession instead of sales
- Misunderstanding online marketplace rules
- Failing to establish chain of custody
- Overcharging first-time sellers
- Ignoring supplier fraud evidence
- Violating Miranda during questioning
- Assuming low prices equal counterfeiting
- Failing to distinguish civil remedies
- Misidentifying the responsible party
- Charging employees instead of decision-makers
- Ignoring compliance programs
- Failing to prove venue
- Overreliance on informants
- Improper aggregation of counts
- Ignoring statute of limitations
- Using prejudicial language before juries
- Failing to prove trademark registration
- Charging without victim involvement
- Ignoring corrective actions taken
- Mishandling seized evidence
- Failing to prove intent to deceive
- Assuming online listings equal sales
- Ignoring disclosures made to buyers
- Overcriminalizing minor conduct
- Charging without financial gain evidence
- Ignoring innocent-owner defenses
- Using boilerplate affidavits
- Failing to authenticate digital evidence
- Relying on outdated trademark data
- Ignoring employment-scope limits
- Charging without consumer harm
- Failing to preserve exculpatory evidence
- Misapplying O.C.G.A. § 10-1-454 elements
- Charging parallel federal conduct improperly
- Overstating jury appeal
- Ignoring reasonable doubt thresholds
- Treating branding as morality crimes
- Assuming guilt from silence
- Overlooking selective enforcement issues
- Failing to challenge gray areas of law
- Charging before investigation completion
- Refusing early resolution opportunities
- Underestimating skilled defense counsel
Protect Your Business, Your Name, and Your Freedom
If you are under investigation—or already charged—with selling counterfeit goods in Georgia, every conversation, document, and decision matters. These cases are winnable, but only when handled by lawyers who understand how judges actually think and how prosecutors overreach.
The Sherman Law Group defends counterfeit-goods cases with precision, discretion, and force. We protect business owners, professionals, and entrepreneurs when everything is on the line.
If you need a serious Georgia lawyer because you have been charged with selling counterfeit goods, we are here for you.
Call now before charges harden into convictions. Early intervention changes outcomes.