(2) For purposes of this section, a mark is counterfeit if:
(a) It is a mark that is identical to or substantially indistinguishable from a registered mark; and
(b) It is used on or in connection with the same type of goods or services for which the genuine mark is registered.
(3) A person does not commit trademark counterfeiting if the person has adopted and lawfully used the same or a confusingly similar mark in the rendition of like services or the manufacture of like goods in this state from a date before the effective date of registration of the service mark or trademark and continues to use the mark after the effective date of registration. [1999 c.722 §2]