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Huntington toy gun case gets OK to go on

JournalGazette.net
By Niki Kelly

 

Heckler & Koch MP5

INDIANAPOLIS – The Indiana Supreme Court on Thursday cleared the way for criminal charges against two Texans who allegedly shipped trademark-infringing toy guns to Huntington.

The ruling means the unique criminal case against Yu-Ting Lin and An-Hung Yao can move forward. It had been halted pending the outcome of the interlocutory appeal.

“It is an area of the law where there is some ambiguity and it’s an opportunity to broaden Indiana’s law, to forge ahead,” Huntington County Prosecutor Amy Richison said.

According to court records, Lin operates Generation Guns, a Texas-based business that imports from Taiwan and then sells products labeled as “airsoft guns.”

Yao, vice president of a bank in Houston, is an associate of Lin’s.

The toys resemble real guns but shoot plastic pellets.

As part of an investigation into potential trademark infringements, firearms manufacturer Heckler & Koch – through an Indianapolis consulting firm and in cooperation with the Indiana State Police – ordered airsoft guns from Generation Guns.

H&K, which makes the MP5 submachine gun, directed that the toy guns be shipped to an address in Huntington County.

Richison then charged Lin and Yao with three counts each of felony theft and felony counterfeiting, and one count each of felony corrupt business influence.

Last year, the Indiana Court of Appeals threw out the charges claiming “there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana.”

Prosecutors hinged their case on the fact the product was shipped to Indiana. But the appellate court disagreed, saying there was no jurisdiction in Indiana because the toys were sold in Texas.

In Thursday’s ruling, the Indiana Supreme Court sided with local prosecutors.

“We cannot conclude that as a matter of law the defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge,” the decision said.

Lin and Yao also generally argued that the case should be resolved under civil trademark infringement law – not by criminal charges.

“By taking sides in this commercial dispute and trying to force a resolution in (H&K’s) favor under the coercive power of the criminal law, the state has subverted the process of rights-determination that trademark law is intended to embody,” the defense claimed.

But the Indiana Supreme Court – in a 4-0 decision – said it isn’t the court’s decision to determine whether a theft prosecution is the wrong tool. It is the court’s job to apply criminal statutes, and the ruling said there are questions of fact that can’t be determined on a motion to dismiss.

Richison acknowledged the unique nature of the case but said many civil and criminal statutes overlap in society today, such as when a person is convicted of murder and then is later sued by the victims’ family.

“Often so much money is involved (in trademark cases) that a monetary punishment isn’t enough to stop the activity,” she said.