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    Organised Activity, Confiscation and 231 Liability

    When counterfeiting conduct is carried out systematically and through a structured organisation, the law provides for specific aggravating circumstances. It is not necessary for the illicit activity to constitute the sole purpose of the organisation: it is sufficient that counterfeiting is carried out in an organised, stable and professionally structured manner.

    Organised Activities and Confiscation

    When counterfeiting conduct is carried out systematically and through a structured organisation, the law provides for specific aggravating circumstances. It is not necessary for the illicit activity to constitute the sole purpose of the organisation: it is sufficient that counterfeiting is carried out in an organised, stable and professionally structured manner.

    Mandatory confiscation

    • of counterfeit or altered products
    • of machinery and equipment used for production
    • of the price or profit derived from the illicit activity
    • of assets of equivalent value, in case of impossibility of direct seizure

    Impact on the company

    • production shutdown
    • interruption of the distribution chain
    • paralysis of operational capacity
    • serious reputational and financial damage

    Subjective Element

    The counterfeiting offences under Articles 473 and 474 are punished for generic intent, consisting of the awareness and will to counterfeit, alter or use trademarks or distinctive signs of others, with the awareness of their non-authentic origin.

    Those who professionally carry out production or commercial activities in sectors exposed to the risk of counterfeiting bear a qualified duty of information: generic or uncritical reliance on third-party indications is not sufficient.

    Administrative Liability of the Entity (Legislative Decree 231/2001)

    Counterfeiting and industrial property violation offences can constitute predicate offences for entity administrative liability when committed: in the interest or to the advantage of the company; by senior persons or persons subject to their direction or supervision.

    The role of the Model 231

    The preparation of an Organisation, Management and Control Model calibrated to counterfeiting risks represents a decisive safeguard. An organisational system that provides for: traceability of the production and distribution chain; supplier verification procedures; controls on trademark use; internal information flows; effective supervision by the Supervisory Board; can decisively affect the judicial assessment of the entity and the configurability of liability.

    Competenze correlate

    Bancarotta e Reati della Crisi d'ImpresaReati TributariReati PrevidenzialiResponsabilità Amministrativa degli Enti – D.Lgs. 231/2001Reati Societari, Finanziari e di MercatoRiciclaggio e Reati Economico Patrimoniali

    Approfondimenti correlati

    Estradizioni e Mandati di ArrestoMandato di arresto europeo (MAE): radicamento in Italia e rifiuto della consegnaRiciclaggio e Reati Economico PatrimonialiConfisca a metà: la Cassazione boccia la doppia motivazione su profitto e sproporzioneRiciclaggio e Reati Economico PatrimonialiSequestro su rogatoria estera: l'art. 724 c.p.p. alla prova della Corte costituzionale

    Frequently asked questions about Counterfeiting and Criminal Protection of Industrial Property

    When does counterfeiting constitute a criminal offence?
    Counterfeiting of trademarks and distinctive signs is punishable under Article 473 of the Criminal Code, while the commercialisation of products with counterfeit signs is governed by Article 474. The offences require that the trademark be validly registered, that the affixed sign be capable of deceiving the consumer, and that the conduct be supported by criminal intent. The defence verifies the validity of the protected right and the actual deceptive scope of the disputed sign.
    How is preventive seizure managed in counterfeiting proceedings?
    In counterfeiting proceedings, preventive seizure can affect warehouses, production lines and financial resources, with immediate effects on business continuity. The defence intervenes to obtain the revocation or reduction of the real constraint, verifying the proportionality of the measure relative to the profit of the offence and the legal soundness of the classification of the contested conduct.
    What is the relationship between criminal counterfeiting and civil trademark protection?
    Criminal protection under Articles 473–474 of the Criminal Code runs alongside civil and administrative trademark protection. Criminal counterfeiting proceedings may run in parallel with civil damages claims and injunctions. Integrated defence coordinates strategies across the different levels of protection, ensuring consistency of positions and protecting corporate interests in all forums.
    Is the online distribution of counterfeit goods criminally prosecutable?
    Yes, the online commercialisation of goods bearing counterfeit trademarks constitutes the offences under Articles 473–474 of the Criminal Code, even when carried out through digital platforms or marketplaces. The defence verifies the perpetrator's awareness of the falsity of the trademark, the provenance of the goods, and the structure of the supply chain — all elements that can significantly affect the subjective profile of the offence.
    Who bears criminal liability in a production chain for counterfeiting offences?
    In a complex production chain, criminal liability for counterfeiting may involve the manufacturer, importer, distributor and retailer, depending on the role actually played and knowledge of the falsity of the trademark. The defence reconstructs the defendant's specific role in the distribution chain and verifies whether the required intent exists or merely negligence, with significant consequences for litigation strategies.

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