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                                Appellate Court                            Date: 2019.03.18
                                                                           10:52:59 -05'00'



                   People v. Gueye, 2018 IL App (1st) 152826



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            ABDOURHMAN GUEYE, Defendant-Appellant.



District & No.     First District, Sixth Division
                   Docket No. 1-15-2826


Filed              June 29, 2018
Rehearing denied   July 24, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 14-CR-10077; the
Review             Hon. William H. Hooks, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Erin Sostock, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                   and Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the
                   People.



Panel              JUSTICE CONNORS delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Hoffman and Justice Delort concurred in the
                   judgment and opinion.
                                                OPINION

¶1       Defendant, Abdourhman Gueye, was convicted of counterfeit trademark violation
     following a bench trial and was sentenced to one year of probation. On appeal, defendant
     contends that the State failed to prove him guilty beyond a reasonable doubt of violating the
     Counterfeit Trademark Act (Act) (765 ILCS 1040/2 (West 2014)), where he lacked the intent
     to deceive. Defendant argues in the alternative that the Act, which criminalizes knowingly
     selling a product with a counterfeit mark, violates state and federal constitutional guarantees of
     due process. For the following reasons, we affirm.

¶2                                           BACKGROUND
¶3        Defendant was charged with violating section 2 of the Act. The indictment stated:
              “[Defendant] knowingly kept, or had in his possession with the intent that the same
              should be sold or disposed of, any goods or merchandise to which any counterfeit mark
              or imitation trademarks were attached or affixed or in which any counterfeit mark or
              imitation trademarks were printed, painted, stamped or impressed to wit: items bearing
              the counterfeit trademark of Michael Kors, Burberry, and Tory Burch of which he was
              not the rightful owner of such trademarks and he knowingly sold, offered for sale, or
              held for sale fewer than 100 counterfeit items, and he has previously been convicted of
              a violation of the *** Act.”
¶4        Defendant waived his right to a jury. At the bench trial, Officer Daniel Stapleton testified
     that on May 17, 2014, at approximately 2 p.m., he was assigned to work on undercover buys of
     counterfeit purses. Officer Stapleton testified that he was working with Lindsey Thompson,
     from the Department of Homeland Security, and that he was assigned to do an undercover buy
     on the corner of E. Chicago Avenue and N. Rush Street. Officer Stapleton testified that on the
     date in question, defendant was standing at that corner by his “purse stand,” which was a rack
     and table with numerous purses hanging from it. Agent Thompson handled the purses and
     looked at them. Officer Stapleton asked defendant the price of the purses Agent Thomas was
     holding, and defendant responded that it was $20. Officer Stapleton testified that he asked
     defendant “why a Michael Kors purse was only twenty dollars.” Officer Stapleton testified
     that, “[Defendant] said they were fake. That’s why they were so cheap.” Officer Stapleton then
     purchased the purse.
¶5        Officer Stapleton testified that he and Agent Thompson then took the purse to Kevin Read,
     a private investigator with whom they were working, for inspection. Officer Stapleton testified
     that after conversing with Read, other officers they were working with arrested defendant.
¶6        Read testified that he is a licensed private investigator, and that one of his responsibilities is
     to work with trademark companies, and to assist them in investigating individuals or fixed
     locations that “sell counterfeit merchandise.” Read testified that he has done work for Nike,
     Louis Vuitton, Burberry, Tory Burch, Chanel, Michael Kors, and others. Read testified that he
     is trained by brand owners on how to “identify counterfeit merchandise.”
¶7        Read testified that he attended trainings with these brands, wherein he met with a
     representative from each company. Read is then provided with training materials, including
     direction on how to identify counterfeit merchandise. Read specifically testified that the brands
     “provide me with samples of both counterfeit and authentic merchandise,” as well as


                                                    -2-
       information on how to specifically identify “counterfeit merchandise as opposed to an
       authentic item.”
¶8          The State then expressed that it wished to qualify Read as an expert in identifying
       counterfeit purses. Defense counsel made a request to ask the witness questions regarding his
       qualifications as an expert. Defense counsel then asked Read what his definition of counterfeit
       was, to which Read replied that if an item depicted a trademark, but that item was not
       manufactured by that brand company, it would be deemed to be counterfeit. Defense counsel
       then asked Read if there was a distinction between counterfeit and imitation, to which Read
       replied that the item has to have the actual trademark affixed to the item, and if the trademark is
       affixed to the item, but the item was not manufactured by that company, then it is a counterfeit
       item. The court then found Read to be an “expert witness in the area of counterfeit purse
       identification.”
¶9          Read testified that his role on the day in question was to identify the “suspect counterfeit
       merchandise.” Read testified that Officer Stapleton and Agent Thompson tendered a handbag
       to him, which they had purchased from defendant. It was orange in color, and depicted the
       trademark for Michael Kors, “[s]pecifically the MK marking with the word Michael Kors.”
       Read stated that he pulled on the label and noticed that the label was affixed through two metal
       brackets onto the bag. Read testified that on an authentic bag, a hole would not have been cut
       into the bag because that causes the label to easily pop out. He then popped the label out in
       open court.
¶ 10        Read also testified that a silicone gel pack was inside the item, which was indicative that it
       was counterfeit, and that it was “probably shipped from China, where it was manufactured.”
       Read also testified that if it was an authentic Michael Kors bag, it would have an inventory
       number affixed to the inside of the bag. Read testified that the hardware would also depict the
       Michael Kors trademarks if it was authentic. The item in question had zippers that did not
       depict a trademark. After examining the item, Read determined that it was a counterfeit
       Michael Kors purse.
¶ 11        Read further testified that on the afternoon in question, he heard defendant say that he was
       selling the handbags to make a living, and that he knew the handbags were fake. After
       defendant was arrested, Read inspected other items at defendant’s purse stand. He found
       handbags and wallets “depicting various trademarks.” Read testified that there were items
       depicting trademarks of Tory Burch, Michael Kors, and Burberry.
¶ 12        Read then testified that he inspected a counterfeit Tory Burch purse. He noticed “that the
       Tory Burch, the T, the one going up and the one going down, which is the registered trademark
       for Tory Burch.” Read testified that the hardware did not display the Tory Burch trademark
       and that an authentic purse would have the trademark on the hardware. Read testified that the
       stitching was frayed, and that if it was an authentic handbag, there would be an identification
       number on the inside of the bag. It was Read’s opinion that the handbag in question was a
       counterfeit item.
¶ 13        The State then showed Read another purse that had been recovered from defendant on the
       day in question. Read testified that the purse was not a counterfeit purse. Read testified that
       although it had a logo on it, the logo was not a registered trademark, and therefore it was not a
       counterfeit purse.
¶ 14        The State then asked to change the indictment to eliminate the word “Burberry” because
       there were “additional inventories that we didn’t bring to court, to the courtroom today. There

                                                    -3-
       is no Burberry in these exhibits.” The trial court noted that if the State failed to prove beyond a
       reasonable doubt that one of the items was a Burberry item, “that would not eliminate the
       whole of the charge.” The parties then stipulated as to several exhibits that depicted the
       certified copies of trademarks for Tory Burch and Michael Kors. The State also presented a
       certified copy of defendant’s conviction for violating the Act on March 13, 2014. It was a Class
       A misdemeanor, for which defendant received one year of conditional discharge.
¶ 15       The trial court then had the parties submit additional briefs discussing the case of People v.
       Revlon, Inc., 99 Ill. App. 2d 463 (1968), and its applicability to the case at bar. After hearing
       argument and reading the briefs, the trial court found defendant guilty of selling counterfeit
       Michael Kors and Tory Burch handbags, and sentenced him to one year of probation.
       Defendant now appeals.

¶ 16                                            ANALYSIS
¶ 17       On appeal, defendant contends that the State failed to prove him guilty of violating section
       2 of the Act where it failed to prove that he had the intent to deceive consumers. Alternatively,
       defendant contends that the Act is unconstitutional.

¶ 18                                  Proof Beyond a Reasonable Doubt
¶ 19        In analyzing a claim for sufficiency of the evidence, we must determine whether, taking the
       evidence in the light most favorable to the State, any rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt. In re Q.P., 2015 IL 118569, ¶ 24. It
       is the responsibility of the trier of fact to resolve conflicts, and weigh and draw reasonable
       inferences from the testimony and other evidence. In re Jonathon C.B., 2011 IL 107750, ¶ 59.
       The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of
       circumstances. Id. ¶ 60. Instead, it is sufficient if all the evidence, taken together, satisfies the
       trier of fact beyond a reasonable doubt of the defendant’s guilt. Id. The trier of fact is not
       required to disregard inferences that flow normally from the evidence, nor to seek all possible
       explanations consistent with innocence and elevate them to reasonable doubt. Id. A conviction
       will be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that
       a reasonable doubt of the defendant’s guilt remains. Id. ¶ 64.
¶ 20        We start by reciting the section of the Act under which defendant was convicted. Section 2
       of the Act states:
                “Whoever uses a counterfeit mark or imitates any trade-mark or service mark of which
                he or she is not the rightful owner or in any way utters or circulates any counterfeit or
                imitation of such a trade-mark or service mark or knowingly uses such counterfeit or
                imitation or knowingly sells or disposes of or keeps or has in his or her possession, with
                intent that the same shall be sold or disposed of, any goods, wares, merchandise, or
                other product of labor or service, to which any such counterfeit or imitation is attached
                or affixed, or on which any such counterfeit or imitation is printed, painted, stamped or
                impressed, or knowingly sells or disposes of any goods, wares, merchandise or other
                product of labor contained in any box, case, can, or package to which or on which any
                such counterfeit or imitation is attached, affixed, printed, painted, stamped or
                impressed, or keeps or has in his possession with intent that the same shall be sold or
                disposed of *** shall be guilty of a Class A misdemeanor for each offense, or in the


                                                     -4-
               case of a counterfeit item shall be punished as provided in Section 8.” (Emphasis
               added.) 765 ILCS 1040/2 (West 2014).
¶ 21       In his indictment, defendant was charged with violating section 2 of the Act in that:
               “He knowingly kept, or had in his possession with the intent that the same should be
               sold or disposed of, any goods or merchandise to which any counterfeit mark or
               imitation trademarks were attached or affixed or in which any counterfeit mark or
               imitation trademarks were printed, painted, stamped or impressed to wit: items bearing
               the counterfeit trademark of Michael Kors, Burberry, and Tory Burch of which he was
               not the rightful owner of such trademarks and he knowingly sold, offered for sale, or
               held for sale fewer than 100 counterfeit items, and he has previously been convicted of
               a violation of the *** Act.”
¶ 22       Accordingly, the elements of the offense that the State had to prove beyond a reasonable
       doubt were that defendant (1) knowingly kept or had in his possession, (2) with intent that the
       same shall be sold or disposed of, (3) any goods or merchandise to which a counterfeit mark
       was attached or affixed, and (4) that he was not the rightful owner of such trademark depicted.
       Id. The only element that the parties contest is the third element: whether the item sold to
       Officer Stapleton was affixed with a counterfeit mark.
¶ 23       A counterfeit item is defined in section 1 of the Act as “any goods, components of goods,
       or services made, produced or knowingly sold or knowingly distributed that use or display a
       counterfeit mark.” Id. § 1. A “ ‘[c]ounterfeit mark’ ” means a “spurious mark”:
                   “(1) That is applied to or used in connection with any goods, services, labels,
               patches, fabric, stickers, wrappers, badges, emblems, medallions, charms, boxes,
               containers, cans, cases, hangtags, documentation, or packaging or any other
               components of any type or nature that are designed, marketed, or otherwise intended to
               be used on or in connection with any goods or services;
                   (2) That is identical with, or substantially indistinguishable from, a mark registered
               in this State, any state, or on the principal register in the United States Patent and
               Trademark Office and in use, whether or not the defendant knew such mark was so
               registered; and
                   (3) The application or use of which either (i) is likely to cause confusion, to cause
               mistake, or to deceive; or (ii) otherwise intended to be used on or in connection with the
               goods or services for which the mark is registered.” Id.
¶ 24       Accordingly, to prove that the handbags at defendant’s purse stand displayed counterfeit
       marks, the State had to prove that the marks were affixed to the handbags, and that such marks
       were identical to, or substantially indistinguishable from, the registered Michael Kors and
       Tory Burch trademarks. Here, the State presented evidence that the label on the handbag sold
       to Officer Stapleton contained an identical mark to the registered trademark of Michael Kors,
       which consisted of “MK” followed by the words “Michael Kors.”
¶ 25       The question then becomes whether the application of the Michael Kors trademark and the
       Tory Burch trademark to the handbags in question was “likely to cause confusion, to cause
       mistake, or to deceive.” Id. The plain language of the statute makes clear that the “likely to
       cause confusion, mistake, or to deceive” portion of the definition of the term “counterfeit
       mark” is in connection with “application” of the spurious mark to the item that is to be sold. In
       other words, the handbags in question became counterfeit items the moment the registered


                                                   -5-
       trademarks of Michael Kors and Tory Burch were affixed to them because the application of
       those registered trademarks were “likely to cause confusion, to cause mistake, or to deceive.”
       Applying a registered trademark to a handbag that was not manufactured by the registered
       trademark holder is certainly likely to cause confusion, to cause mistake, or to deceive because
       only an expert, upon close inspection, would know that the handbag bearing a registered
       trademark was not manufactured by the trademark holder. Accordingly, viewing this evidence
       in a light most favorable to the State, we find that the trial court did not abuse its discretion in
       finding that the State proved beyond a reasonable doubt that the handbags in question bore
       counterfeit marks and that defendant violated section 2 of the Act.
¶ 26       Defendant maintains, relying on Revlon, that an intent to deceive is implicit in the term
       “counterfeit,” and therefore the handbag was not a counterfeit item because defendant had no
       intention of deceiving Officer Stapleton when he told Officer Stapleton that the bag was
       “fake.” However, Revlon, which was decided in 1968, was published before any amendments
       to the statute in question had been made. Most importantly, the statute in question in Revlon
       did not contain a definition for the term “counterfeit item” or “counterfeit mark.” Accordingly,
       the case analyzed the term “counterfeit” in the predecessor to section 2 of the Act, using a
       different definition than that which exists in the current version of the Act.
¶ 27       In the Revlon decision, Revlon, Inc. was charged with violating the Illinois trademark
       tatute (statute) (Ill. Rev. Stat. 1963, ch. 140, ¶ 25), in that it used Clairol’s registered trademark
       on its boxes of hair dye without Clairol’s consent. Revlon, 99 Ill. App. 2d at 464-65. Section 25
       of the statute provided, “Every person who shall use or display a trade-mark of which he is not
       the lawful owner in any manner not authorized by such owner shall be deemed guilty of a
       misdemeanor ***.” Ill. Rev. Stat. 1963, ch. 140, ¶ 25. The only issue on appeal was the
       “narrow issue” of whether the statute intended to proscribe conduct in the absence of any
       deception. Revlon, 99 Ill. App. 2d at 466. The court noted that since there were no cases
       construing or applying the statute, it would look to other sections of the 1955 revision of
       chapter 140. Revlon, 99 Ill. App. 2d at 468. The court discussed section 24 of the statute, which
       stated:
                “Whoever counterfeits or imitates any trademark of which he is not the rightful owner
                or in any way utters or circulates any counterfeit or imitation of such a trade-mark or
                knowingly uses such counterfeit or imitation or knowingly sells or disposes of or keeps
                or has in his possession, with intent that the same shall be sold or disposed of, any
                goods, wares, merchandise, or other product of labor to which any such counterfeit or
                imitation is attached or affixed, or on which any such counterfeit or imitation is printed,
                painted, stamped or impressed, or knowingly sells or disposes of any goods, wares,
                merchandise or other product of labor contained in any box, case, can or package to
                which or on which any such counterfeit or imitation is attached *** shall be punished
                ***.” Ill. Rev. Stat. 1963, ch. 140, ¶ 24.
¶ 28       The court then stated, “ ‘Counterfeit’ means ‘false representation’ or ‘imitation with intent
       to deceive,’ thus it may be said that something which is counterfeit is an imitation but it is more
       than an imitation, it is imitation plus deception.” Revlon, 99 Ill. App. 2d at 471 (quoting 10
       Words & Phrases, 40). The court stated that, “Deception does not arise from mere imitation of
       a trade-mark but does arise from imitation and use in connection with the promotion of goods
       or services.” Id. The court then concluded that because section 25 of the statute, which


                                                     -6-
       penalized a person for there mere “use or display” of a trademark, and did not include the word
       “counterfeit” or any element of deception, failed to state an offense. Id. at 473.
¶ 29       In the case at bar, on the other hand, the offense for which defendant was
       charged—knowingly selling items to which a counterfeit mark is affixed—includes the term
       “counterfeit mark,” which is now defined as a “spurious mark,” affixed to any goods, which is
       “likely to cause confusion, to cause mistake, or to deceive.” 765 ILCS 1040/1 (West 2014).
       Moreover, in People v. Ebelechukwu, 403 Ill. App. 3d 62, 67 (2010), a case that was decided
       based on the current language of the Act, this court noted that the Act “provid[es] criminal
       penalties for trafficking in counterfeit goods to which a trademark is attached.” This court
       stated that the Act was intended to “protect trademark holders from misappropriation of their
       investment and penalize those individuals who infringe on trademarks by trafficking in
       counterfeit goods.” Id. Accordingly, the purpose of the Act is not only to penalize those
       individuals selling counterfeit items under the guise that the items are authentic, but also to
       penalize those who disclaim to the consumer, as was done in this case, that the item is “fake.”
       In both scenarios, the offender is infringing on trademarks by trafficking counterfeit items
       bearing registered trademarks, and misappropriating the investment of the trademark holder.

¶ 30                                      Constitutionality of Statute
¶ 31        Defendant alternatively argues that section 2 of the Act is unconstitutional because it fails
       to require a culpable mental state beyond mere knowledge. “A statute is presumed
       constitutional, and the party challenging the statute bears the burden of demonstrating its
       invalidity.” People v. Malchow, 193 Ill. 2d 413, 418 (2000). “Whether a statute is
       constitutional is a question of law that we review de novo.” Id.
¶ 32        The fourteenth amendment to the United States Constitution and article I, section 2, of the
       Illinois Constitution protect individuals from the deprivation of life, liberty, or property
       without due process of law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. “Under the
       banner of its police power, the legislature has wide discretion to fashion penalties for criminal
       offenses, but this discretion is limited by the constitutional guarantee of substantive due
       process, which provides that a person may not be deprived of liberty without due process of
       law.” People v. Madrigal, 241 Ill. 2d 463, 466 (2011). When the challenged statute does not
       affect a fundamental constitutional right, the appropriate test for determining its
       constitutionality is the highly deferential rational basis test. Id. Under that test, a statute will be
       sustained if it bears a reasonable relationship to a public interest to be served, and the means
       adopted are a reasonable method of accomplishing the desired objective. Id.
¶ 33        A statute violates due process if it potentially subjects “wholly innocent conduct to
       criminal penalty without requiring a culpable mental state beyond mere knowledge.” Id. at
       467. In such a case, the statute “fails the rational basis test because it does not represent a
       reasonable method of preventing the targeted conduct.” Id. at 468. Here, defendant, relying on
       Madrigal, contends that because section 2 of the Act merely requires that the offender
       “knowingly” sell or intend to sell counterfeit items, the statute violates due process. We
       disagree.
¶ 34        In Madrigal, the statute at issue involved identity theft and stated that a person commits the
       offense of identity theft when he or she knowingly:



                                                      -7-
                    “(1) uses any personal identifying information or personal identification document
               of another person to fraudulently obtain credit, money, goods, services, or other
               property, or
                    (2) uses any personal identification information or personal identification
               document of another with intent to commit any felony theft or other felony violation of
               State law not set forth in paragraph (1) of this subsection (a), or
                    (3) obtains, records, possesses, sells, transfers, purchases, or manufactures any
               personal identification information or personal identification document of another with
               intent to commit or to aid or abet another in committing any felony theft or other felony
               violation of State law, or
                    (4) uses, obtains, records, possesses, sells, transfers, purchases, or manufactures
               any personal identification information or personal identification document of another
               knowing that such personal identification information or personal identification
               documents were stolen or produced without lawful authority, or
                                                     ***
                    (7) uses any personal identification information or personal identification
               document of another for the purpose of gaining access to any record of the actions
               taken, communications made or received, or other activities or transactions of that
               person, without the prior express permission of that person.” (Emphases added.) 720
               ILCS 5/16G-15(a) (West 2008).
¶ 35       The Illinois Supreme Court found in Madrigal that the first five offenses listed in
       subparagraphs (a)(1) through (a)(5) “require a criminal purpose in addition to the general
       knowledge that one is committing the actions specified,” and “clearly do not fall within the
       parameters of the line of cases that deal with statutes that potentially punish innocent conduct.”
       Madrigal, 241 Ill. 2d at 470. The court went on to find that (a)(7), on the other hand, clearly did
       “not require criminal intent, criminal knowledge, or a criminal purpose” because it potentially
       punished wholly innocent conduct like doing a computer search through Google or a social
       networking site that could uncover records or transactions of a person. Id. at 470-71.
¶ 36       Conversely, the statute at issue in our case does not have the potential to punish wholly
       innocent conduct. And is, in fact, precisely akin to section (a)(4) of the above statute, which
       our supreme court expressly found properly required a criminal purpose. Section (a)(4) of the
       statute at issue in Madrigal states, in pertinent part, that a person is guilty of identity theft if he
       or she sells any personal identification documents of another, “knowing that such personal
       identification information or personal identification documents were stolen or produced
       without lawful authority.” (Emphases added.) 720 ILCS 5/16G-15(a)(4) (West 2008). The
       same requirements are present here. Section 2 of the Act requires, in pertinent part, that
       whoever uses a counterfeit mark of which he or she is not the rightful owner, or in any way
       “knowingly” sells any goods to which any such counterfeit mark is attached or affixed, shall be
       guilty of a Class A misdemeanor. Accordingly, just as selling personal identification
       documents that are known to be stolen constitutes a criminal purpose, so too does selling items
       that are known to be counterfeit. We therefore find that this statute does not violate due
       process.
¶ 37       Defendant nevertheless contends that section 2 has the potential to punish wholly innocent
       conduct like that which occurred in Revlon—when a company uses another company’s


                                                      -8-
       trademark for comparison purposes on its box. However, as discussed above, the statute under
       which Revlon was charged stated, “Every person who shall use or display a trade-mark of
       which he is not the lawful owner in any manner not authorized by such owner shall be deemed
       guilty of a misdemeanor ***.” Ill. Rev. Stat. 1963, ch. 140, ¶ 25. As explained in detail above,
       the lack of the word “counterfeit” from this statute, potentially criminalized innocent behavior
       such as this one—where a company used another company’s trademark for comparison
       purposes. The definition of a counterfeit mark includes the requirements that (1) it be applied
       to any goods; (2) it is identical with, or substantially indistinguishable from, a mark registered
       in this state, any state, or on the principal register in the United States Patent and Trademark
       Office and in use; and (3) the application of which is (i) likely to cause confusion, to cause
       mistake, or to deceive, or (ii) otherwise intended to be used on or in connection with the goods
       or services for which the mark is registered. 765 ILCS 1040/1 (West 2014). The very essence
       of a counterfeit item is that it is created with the intent to cause confusion between it and an
       authentic item. As a result, we find that if a person knows an item is a counterfeit item, and
       sells or intends to sell that item, that person has committed a crime under section 2 of the Act.
¶ 38        Similarly, we reject defendant’s argument that section 2 would potentially criminalize the
       wholly innocent conduct of selling a handbag marked “not made by Michael Kors” or if the
       product uses the trademark for parody purposes. If a product stated that it was “not made by
       Michael Kors,” it would not be a counterfeit item because the definition of a counterfeit item is
       one that bears a registered trademark that is identical with, or substantially indistinguishable
       with, a registered trademark and which is likely to cause confusion, to cause mistake, or to
       deceive. A handbag that states, “not made by Michael Kors” would not be confused or
       mistaken with an authentic Michael Kors handbag.
¶ 39        Defendant’s final contention is that the use of the word “or” in part three of the definition
       of a counterfeit mark potentially criminalizes wholly innocent conduct. The third requirement
       for a spurious mark to be deemed a counterfeit mark is that the application of such mark “either
       (i) is likely to cause confusion, to cause mistake, or to deceive; or (ii) otherwise intended to be
       used on or in connection with the goods or services for which the mark is registered.” Id.
       Defendant claims that the use of “or” in the definition signifies that under subset (ii) of the
       third element of the definition of counterfeit mark, a person could be punished for selling a
       handbag that states, “not made by Michael Kors,” as that would be applying a registered
       trademark on goods for which the trademark was intended, despite the fact that such use would
       not likely cause confusion or mistake.
¶ 40        As recognized by both parties, the federal counterpart to the Act states that the term
       “counterfeit mark” means a spurious mark:
                     “(i) that is used in connection with trafficking any goods, services, labels, patches,
                 stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans,
                 cases, hangtags, documentation, or packaging of any type or nature;
                     (ii) that is identical with, or substantially indistinguishable from, a mark registered
                 on the principal register in the United States Patent and Trademark Office and in use,
                 whether or not the defendant knew such mark was so registered;
                     (iii) that is applied to or used in connection with the goods or services for which the
                 mark is registered with the United States Patent and Trademark Office, or is applied to
                 or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box,
                 container, can, case, hangtag, documentation, or packaging of any type or nature that is

                                                     -9-
               designed, marketed, or otherwise intended to be used on or in connection with the
               goods or services for which the mark is registered in the United States Patent and
               Trademark Office; and
                   (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive[.]”
               (Emphasis added.) 18 U.S.C. § 2320(f)(1)(A) (2012).
¶ 41       Accordingly, the federal counterpart to the statute at issue defines a counterfeit mark as one
       requiring both the likelihood of confusion, mistake, or deceit, as well as the use on or in
       connection with the goods or services for which the mark is registered. This is different from
       the definition in Illinois, which requires either the likelihood of confusion or the use on or in
       connection with the goods or services for which the mark is registered. While we find this
       discrepancy problematic, this issue is not properly before this court.
¶ 42       “[C]ourts do not rule on the constitutionality of a statute where its provisions do not affect
       the parties [citation], and decide constitutional questions only to the extent required by the
       issues in the case.” People v. Mosley, 2015 IL 115872, ¶ 11. Defendant was charged in this
       case under section 2 of the Act, in that he knowingly sold items bearing counterfeit marks. The
       State presented evidence that certain handbags defendant was selling were counterfeit in that
       they bore identical marks to that of trademarks registered to Michael Kors and Tory Burch.
       The State, in closing argument, specifically argued that “the deception is the bag itself.” In its
       briefs to the trial court after presenting evidence, it stated that the definition of a counterfeit
       mark included the element that “the application or use of the mark is likely to cause confusion
       or mistake or to deceive.” The trial court noted in its decision that the deception was to the
       public, since the handbag bore a registered trademark. There was no discussion whatsoever of
       subset (ii) of the third element of the definition of counterfeit mark, and therefore the
       constitutionality of that subset is not before this court as it would not affect the parties. See id.

¶ 43                                        CONCLUSION
¶ 44       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 45       Affirmed.




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