State v. Troisi

Timothy P. Cannon, Judge,

dissenting.

{¶ 55} I respectfully dissent from the majority’s opinion.

{¶ 56} First, I believe that as an expert witness for the state, Sergeant Richissin was permitted to testify as to the identity of the companies’ trademarks. He testified that he had been trained by representatives from Gucci, Prada, *337Coach, Dior, Louis Vuitton, Fendi, Dooney and Bourke, Tiffany, Burberry, Liz Claiborne, Kate Spade, Chanel, and Versace. Also, he testified that he was familiar with the trademarks of each of these companies and that those trademarks are registered in the United States Patent and Trademark Office.

{¶ 57} Further, I believe that the state submitted sufficient evidence to sustain Troisi’s convictions.

{¶ 58} Courts have held “that ‘the purpose of trademark law is not to guarantee genuine trademarks but to guarantee that every item sold under a trademark is the genuine trademarked product, not a substitute.’ ” United States v. Petrosian (C.A.9, 1997), 126 F.3d 1232, 1234, fn. 2, quoting Gen. Elec. Co. v. Speicher (C.A.7, 1989), 877 F.2d 531, 534.

{¶ 59} There is a federal statute analogous to R.C. 2913.34. See Section 2320, Title 18, U.S.Code. This statute also defines a “counterfeit mark” as a “spurious mark * * * that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office.” Section 2320(e)(1), Title 18, U.S.Code. Regarding this statute, the Eleventh Circuit Court of Appeals has held:

{¶ 60} “The statute does not specify the means by which the Government may establish that the marks were ‘identical or substantially indistinguishable.’ There is no support for the proposition that in all cases, the trier of fact must determine indistinguishability based on the marks as affixed to the actual goods. Nor is there a requirement that the actual trademark owner testify in a criminal trial, or that the agent who conducted the investigation and seizure of the counterfeit merchandise be qualified as an expert in the particular type of product. In this case, the jury had been shown registered designs of the trademarks for each cigar, as well as various cigar labels or bands produced by authorized licensees. The jury therefore had a valid basis for comparison in determining whether the designs were ‘identical or substantially identical [sic].’ ” United States v. Guerra (C.A.11, 2002), 293 F.3d 1279, 1288.

{¶ 61} Thus, in any given case, there are a variety of ways for the state to meet its burden of demonstrating that the marks used on the products were identical with or substantially indistinguishable from registered marks. I agree that one of the ways to do this is to actually introduce certified copies of the trademarks in question. This would be the paramount evidence to prove the state’s case. However, another way to meet the state’s burden would be to introduce authentic products and have a representative from the company identify the items as authentic, thus providing the jury with a comparison of the two marks. Finally, I believe that the state’s evidence in this case, an expert opinion regarding the identity of the actual trademarks, combined with the defendant’s confession, was sufficient.

*338{¶ 62} In the case sub judice, Sergeant Richissin testified that based on his education, training, and experience, he is able to identify trademarks. He identified certain marks on the counterfeit purses as being purported trademarks from certain companies, such as Louis Vuitton. He also testified that certain marks, such as the one appearing on a purported Coach bag, were “registered on the principal register in the United States Patent and Trademark Office.” Moreover, Sergeant Richissin testified that the marks on the merchandise seized from Troisi “were either identical or substantially indistinguishable from the genuine trademark[s].”

{¶ 63} In addition to Sergeant Richissin’s expert testimony, the state presented evidence that Troisi admitted that the merchandise was counterfeit. Troisi gave a written statement to the police, which was admitted at trial. In her statement, Troisi states that she “had copy bags,” that she knew “it was error to sell them,” and that she was “willing to give [the officers] the names of [her] suppliers in New York.” In addition, the officer taking her statement asked: “Did you know the merchandise you were selling (and brought) to 10350 Chillicothe Rd. was counterfeit designer merchandise?” Troisi responded in her own handwriting: ‘Tes. I knew that the purses and wallets were not authentic.”

{¶ 64} Also, Sergeant Richissin executed a controlled buy from Troisi. He testified that he had the following conversation with her:

{¶ 65} “Q. Was there any discussion prior to your purchase?

{¶ 66} “A. We tried to get [Troisi] down on the price. We asked her if we could purchase the purse for forty dollars, rather than fifty dollars.

{¶ 67} “Q. And did she have a response for you?

{¶ 68} “A. She said to me, Do you know [how] much it would cost to buy that purse if it was real.”

{¶ 69} In her written statement, Troisi admitted that the merchandise was counterfeit. In addition, during the controlled buy, she directly informed Sergeant Richissin that the merchandise was not real.

{¶ 70} Through the testimony of Sergeant Richissin and Troisi’s confession, the state presented evidence that when viewed in totality and in a light most favorable to the state was sufficient for a trier-of-fact to conclude that Troisi had committed the offense of trademark counterfeiting.

{¶ 71} The judgment of the trial court should be affirmed.

{¶ 72} Finally, I disagree with the remedy imposed by the majority.

{¶ 73} When conducting a sufficiency-of-the-evidence analysis, this court is to look at the actual evidence admitted at trial, both admissible and inadmissible. See State v. Jeffries, 11th Dist. No. 2005-L-057, 2007-Ohio-3366, 2007 WL *3391881314, at ¶ 100, citing Lockhart v. Nelson (1988), 488 U.S. 33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265. (State v. Jeffries overruled on other grounds in State v. Jeffries, 119 Ohio St.3d 265, 2008-Ohio-3865, 893 N.E.2d 487.) In her brief, Troisi asserts that “without the testimony of Richissin on this issue, the verdict is not supported by sufficient evidence.” As such, Troisi apparently concedes that with Sergeant Richissin’s testimony, the state presented sufficient evidence to support her convictions.

{¶ 74} If the majority concludes that Sergeant Richissin’s testimony should not have been admitted because a proper foundation was not provided, then what occurred in this matter is an error in the admission of evidence. As such, the proper remedy is to reverse Troisi’s convictions and remand the matter for a new trial. See, e.g., State v. Papalevich (Nov. 13, 2001), 10th Dist. No. 01AP-264, 2001 WL 1403110, at *10. However, the “inadmissible” evidence should still be considered when conducting a sufficiency-of-the-evidence analysis. State v. Jeffries, 2007-Ohio-3366, 2007 WL 1881314, at ¶ 100. This is because, had the trial court sustained Troisi’s objections to Sergeant Richissin’s testimony, the state would have had the opportunity to submit other evidence to demonstrate that the marks used on the products in this case were identical with or substantially indistinguishable from registered marks.