Bernard Delaney McCREE, Jr. v. STATE of Maryland.
No. 20, Sept. Term, 2014.
Court of Appeals of Maryland.
Dec. 18, 2014.
105 A.3d 456
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
WATTS, J.
We decide whether Maryland‘s trademark counterfeiting statute,
BACKGROUND
The State, Respondent, charged Bernard Delaney McCree, Jr. (“McCree“), Petitioner, with numerous crimes, including violating
At trial, a trooper of the Maryland State Police testified that, during a traffic stop of a vehicle that McCree had been driving, 206 DVDs were found in the vehicle. Dennis Supik, an investigator with the Content Protection Office of the Motion Picture Associatiоn of America, testified as an expert in the field of the identification of counterfeit DVDs that all 206 DVDs contained “numerous counterfeit marks” and thus were “counterfeit reproductions” of movies on DVD. On his own behalf, McCree testified that he was a licensed vendor whom the State had authorized to sell the DVDs; McCree denied that he had manufactured the DVDs or that he knew whether the DVDs were counterfeit.
A jury convicted McCree of violating
DISCUSSION
I.
McCree contends that
An appellate court reviews without deference a trial court‘s conclusion as to whether a statute is unconstitutional. See generally Corbin v. State, 428 Md. 488, 498, 52 A.3d 946, 951 (2012) (“[W]e review the ultimate question of constitutionality de novo[.]” (Citation omitted)). In interpreting a statute, a court first considers the statute‘s language, which the court applies where the statute‘s language “is unambiguous and clearly сonsistent with the statute‘s apparent purpose[.]” State v. Weems, 429 Md. 329, 337, 55 A.3d 921, 926 (2012) (citation omitted).
An overbroad statute criminalizes conduct that the Free Speech Clause of the First Amendment to the United States Constitution1 protects. See Grayned v. City of Rockford, 408 U.S. 104, 114-15, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (“A clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct. . . . The crucial question . . . is whether the ordinance sweeps within its prohibitions what may not be punished under the First . . . Amendment[ ].” (Footnote omitted)).
Even if a statute is not overbroad as applied to a particular defendant‘s actions, the defendаnt may contend that the statute is facially overbroad “because of a judicial prediction or assumption that the statute‘s very existence may” chill third parties’ speech. Hill v. Colorado, 530 U.S. 703, 731-32, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (citation omitted). Such a facial challenge succeeds if and only if “the statute is substantially overbroad“—i.e., there is “a realistic danger that the statute [ ] will significantly compromise” third parties’ speech. N.Y. State Club Ass‘n, Inc. v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (citation and internal quotation marks omitted); see also United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (“[A] statute‘s overbreadth [must] be substantial . . . relative to the statute‘s plainly legitimate sweep.” (Citations and emphasis omitted)).
(a) Definitions.—(1) In this section the following words have the meanings indicated.
(2) “Counterfeit mark” means:
(i) an unauthorized copy of intellectual property; or
(ii) intellectual property affixed to goods knowingly sold, offered for sale, manufactured, or distributed, to identify services offered or rendered, without the authority of the owner of the intellectual property.
(3) “Intellectual property” means a trademark, service mark, trade name, label, term, device, design, or word adopted or used by a person to identify the goods or services of the person.
(4) “Retail value” means:
(i) a trademark counterfeiter‘s selling price for the goods or services that bear or are identified by the counterfeit mark; or
(ii) a trаdemark counterfeiter‘s selling price of the finished product, if the goods that bear a counterfeit mark are components of the finished product. (5) “Trademark counterfeiter” means a person who commits the crime of trademark counterfeiting prohibited by this section.
(b) Prohibited.—A person may not willfully manufacture, produce, display, advertise, distribute, offer for sale, sell, or possess with the intent to sell or distribute goods or services that the person knows are bearing or are identified by a counterfeit mark.
(c) Penalty—Value at least $1,000.—If the aggregate retail value of the goоds or services is $1,000 or more, a person who violates this section is guilty of the felony of trademark counterfeiting[.]
(d) Penalty—Value less than $1,000.—If the aggregate retail value of the goods or services is less than $1,000, a person who violates this section is guilty of the misdemeanor of trademark counterfeiting[.]
* * *
(g) Evidence of trademark or trade name.—State or federal registration of intellectual property is prima facie evidence that the intellectual property is a trademark or trade name.
(Emphasis added).
Reviewing
Our conclusion is supported by the doctrine of noscitur a sociis (“it is known from its associatеs“), under which “the meaning of a word is . . . known from the accompanying words so that . . . general and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are restricted to a sense analogous to less general[.]” Emmert v. Hearn, 309 Md. 19, 25, 522 A.2d 377, 380-81 (1987) (citation omitted).
Indeed, in another statute, titled “Infringement,” that, like
We reject McCree‘s contention that
In support of his contention that
McCree‘s contention that
The parties are correct in agreeing that
That said, we disagree with McCree‘s position that
More importantly, to violate the Free Speech Clause, a statute‘s alleged overbreadth must be substantial relative to what the statute may constitutionally prohibit. See Williams, 553 U.S. at 292, 128 S.Ct. 1830; Galloway v. State, 365 Md. 599, 640, 781 A.2d 851, 875 (2001). It is undisputed that individuals and businesses depend on trademarks “to identify” their goods and services “and to distinguish them from” others’ goods and services.
McCree contends that even if the terms “goods” and “services” refer only to items that are purveyed for commercial purposes, “that fact would not resolve the First Amendment concerns, for commercial speech, too, is protected by the” Free Speech Clause. McCree‘s contention is wrong. Although the Free Speech Clause partially protects cоmmercial speech, that protection has never been interpreted as applying to criminal or unlawful activity. In Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749-50, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), a case involving a statute that banned the advertisement of prescription drug prices by licensed pharmacists, the Supreme Court held that “commercial speech, like other varieties, is protected,” but that “[s]ome forms of commercial speech regulation are surely permissible.” The Supreme Court “mention[ed]” a few forms of permissible commercial spеech regulation “to make clear that they are not before [the Court] and therefore are not
Thus, to be sure, McCree is correct that the Free Speech Clause partially protects commercial sрeech. It is readily apparent, nonetheless, from Va. State Bd. of Pharmacy and Posadas de P.R. Associates that this protection does not extend to commercial speech concerning illegal activity, such as the sale or display of counterfeit items in violation of
For the above reasons, we hold that
II.
McCree contends that
A statute is void-for-vagueness where the statute‘s “prohibitions are not clearly defined[,]” thus viоlating the Due Process Clause of the Fourteenth Amendment to the United States Constitution.4 City of Mesquite v. Aladdin‘s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (citation, emphasis, and internal quotation marks omitted); see also Galloway, 365 Md. at 614, 781 A.2d at 860 (“[A]n enact-
ment is void for vagueness if its prohibitions are not clearly defined.” (Quoting Grayned, 408 U.S. at 108, 92 S.Ct. 2294)). A statute‘s prohibitions are not clearly defined where people “of common intelligence must necessarily guess at [the statute‘s] meaning and differ as to [the statute‘s] application[.]” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012) (citation omitted); see also Galloway, 365 Md. at 615, 781 A.2d at 860 (“The standard for determining whether a statute provides fair notice is whether persons of common intelligence must necessarily guess at the statute‘s meaning.” (Brackets, citation, and internal quotation marks omitted)). People of common intelligence need not guess at a statute‘s meaning “if the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” Id. at 615, 781 A.2d at 860 (citations, emphasis, and internal quotation marks omitted). “[A] statute does not become unconstitutionally vague merely because it may not be perfectly clear at the margins. In other words, the vagueness doctrine does not require absolute precision or perfection.” Id. at 634, 781 A.2d at 871 (citations and internal quotation marks omitted).
Applying these authorities to this case, we conclude that
We are unpersuaded by McCree‘s reliance on “the last antecedent rule” for the contention that, in
tellectual property’ encompasses only those terms or words that have been ‘adopted or used by а person to identify the goods or services of the person.‘” McCree, 214 Md.App. at 256, 76 A.3d at 410 (quoting
Our conclusion is unchanged by the following hypothetical situation that McCree offers in his brief. Bob circulates copies of “Bob‘s Cookbook,” the cover of which contains a “B” in a distinctive font. Bob has not registered the “B” with any government entity. Chris asks Bob for permission to make copies of “Bob‘s Cookbook,” sell them, and split the proceeds. Bob declines.
As the State points out, it is clear that Chris would violate
To the extent that McCree contends that the Free Speech Clause protects the misappropriation of unregistered labels, terms, devices, designs, or words that are used to identify goods and services—and thus protects Chris‘s making and selling cоpies of “Bob‘s Cookbook” without Bob‘s authority—such a contention is not in accord with case law concerning facial vagueness. In determining whether a statute is facially void-for-vagueness, a court considers only whether the statute‘s “prohibitions are . . . clearly defined.” Aladdin‘s Castle, 455 U.S. at 289, 102 S.Ct. 1070 (citation, emphasis, and internal quotation marks omitted). As discussed above,
For the above reasons, we hold that
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS.
WATTS, J.
Notes
Even if a statute is not void-for-vagueness as applied to a particular defendant‘s actions, the defendant may contend that the statute is facially void-for-vagueness where the statute may criminalize conduct that the Free Speech Clause protects. See United States v. Nat‘l Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) (“[I]n cases arising under the First Amendment[,] we are concerned with the vagueness of the statute ‘on its face’ because such vagueness may in itself deter constitutionally protected conduct.” (Citations omitted)); Ayers v. State, 335 Md. 602, 624, 645 A.2d 22, 33 (1994) (“Where [a] statute appears to impinge upon fundamental constitutional rights such as the First Amendment guarantees of free speech and assembly, the statute is tested for vagueness on its face because its indefiniteness may have a chilling effect on the exercise of First Amendment liberties.” (Citation omitted)).