An Indianapolis man arrested in Mercer County for having handbags he admitted were counterfeit has lost his bid to have a charge of trademark counterfeiting dismissed by a judge.

Mamadou Diallo, 41, a native of Guinea, West Africa, was stopped July 13, 2005, while westbound on Interstate 80 in Wolf Creek Township when state police trooper Timothy Callahan noticed the van did not have a license plate light.

Callahan asked Diallo what was in bags and boxes he could see, and Diallo responded, “clothes.” Diallo allowed Callahan to inspect the van.

Callahan found about 300 pieces of designer clothing, jewelry and handbags, and concluded by their packaging that some Louis Vuitton handbags were counterfeit.

U.S. Immigration and Customs Enforcement took over the case, and Diallo was indicted. At trial in April, Diallo’s attorney asked that the charge be dismissed after the U.S. Attorney’s office in Pittsburgh had presented its case. U.S. District Court Judge Thomas M. Hardiman chose not to decide at that time and allowed the trial to continue.

Diallo’s attorney, Assistant U.S. Public Defender Thomas Livingston, presented no defense. In closing arguments, he told the jury that prosecutors had shown that Diallo had counterfeit handbags, that he knew they were counterfeit and that he had trafficked in them by transporting them with the intention of selling them.

But, Livingston argued, Diallo had not “used” the counterfeit mark, as required in the law. He relied on a definition of use settled on by the U.S. Supreme Court in a firearms case.

The jury found Diallo guilty.

After months of behind-the-scenes talks, Livingston reasserted his motion for acquittal, arguing that Diallo had to have shown the mark to someone, sold the handbags or done something with them for him to have used the mark.

Hardiman concluded that the Supreme Court case could not be used in Diallo’s case.

“Unlike firearms, spurious marks are abstract symbols which are not ‘used’ in the same way as concrete, utilitarian items,” he said.

A mark cannot be brandished in the way a firearm can, he said.

Concluding that Diallo could legally transport goods he knew were counterfeit would render immune manufacturers and distributors of counterfeit goods “as long as they transported them in cargo containers, crates or bags without displaying them for sale,” Hardiman said.

“Diallo’s knowing, intentional acquisition of handbags emblazoned with spurious marks for sale at a profit at his store was more than sufficient evidence to prove that he had ‘used’ counterfeit marks,” the judge said.

Diallo has been out on bond since July 29, 2005. No sentencing date has been set.