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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY YOUNGBLOOD, CRUZ, CREIGHTON, HORNAMAN, W. KELLER, KORTZ, MILLER, MURT, READSHAW, SIPTROTH AND K. SMITH, MARCH 5, 2009 |
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| REFERRED TO COMMITTEE ON JUDICIARY, MARCH 5, 2009 |
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| AN ACT |
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1 | Amending Title 18 (Crimes and Offenses) of the Pennsylvania |
2 | Consolidated Statutes, further providing for trademark |
3 | counterfeiting. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Section 4119 of Title 18 of the Pennsylvania |
7 | Consolidated Statutes is amended to read: |
8 | § 4119. Trademark counterfeiting. |
9 | (a) Offense defined.--Any person who knowingly manufactures, |
10 | uses, displays, advertises, distributes, transports, offers for |
11 | sale, sells or possesses with intent to sell or distribute any |
12 | items or services bearing or identified by a counterfeit mark |
13 | shall be guilty of the crime of trademark counterfeiting. |
14 | (b) [Presumption.--A person having possession, custody or |
15 | control of more than 25 items bearing a counterfeit mark may be |
16 | presumed to possess said items with intent to sell or |
17 | distribute.] (Reserved). |
18 | (c) Penalties.-- |
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1 | (1) Except as provided in paragraphs (2) and (3), a |
2 | violation of this section constitutes a misdemeanor of the |
3 | first degree. |
4 | (2) A violation of this section constitutes a felony of |
5 | the third degree if: |
6 | (i) the defendant has previously been convicted |
7 | under this section; [or] |
8 | (ii) the violation involves more than 100 but less |
9 | than 1,000 items bearing a counterfeit mark or the total |
10 | retail value of all items or services bearing or |
11 | identified by a counterfeit mark is more than $2,000, but |
12 | less than $10,000[.]; or |
13 | (iii) bodily injury to another results from a |
14 | violation of this section. |
15 | (3) A violation of this section constitutes a felony of |
16 | the second degree if: |
17 | (i) the defendant has been previously convicted of |
18 | two or more offenses under this section; |
19 | (ii) the violation involves the manufacture or |
20 | production of items bearing counterfeit marks; [or] |
21 | (iii) the violation involves 1,000 or more items |
22 | bearing a counterfeit mark or the total retail value of |
23 | all items or services bearing or identified by a |
24 | counterfeit mark is more than $10,000[.]; or |
25 | (iv) serious bodily injury to another results from a |
26 | violation of this section. |
27 | (d) Quantity or retail value.--The quantity or retail value |
28 | of items or services shall include the aggregate quantity or |
29 | retail value of all items or services [bearing or identified by |
30 | every counterfeit mark] the defendant manufactures, uses, |
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1 | displays, advertises, distributes, offers for sale, sells or |
2 | possesses. |
3 | (e) Fine.--Any person convicted under this section shall be |
4 | fined in accordance with existing law or an amount up to three |
5 | times the retail value of the items or services bearing or |
6 | identified by a counterfeit mark, whichever is greater.[, unless |
7 | extenuating circumstances are shown by the defendant.] |
8 | (f) Seizure, forfeiture and disposition.-- |
9 | (1) Any items bearing a counterfeit mark, any property |
10 | constituting or derived from any proceeds obtained, directly |
11 | or indirectly, as the result of an offense under this section |
12 | and all personal property, including, but not limited to, any |
13 | items, objects, tools, machines, equipment, instrumentalities |
14 | or vehicles of any kind, [knowingly employed or] used in |
15 | connection with a violation of this section [may] shall be |
16 | seized by [any] a law enforcement officer. |
17 | (2) All seized personal property referenced in paragraph |
18 | (1) shall be forfeited in accordance with applicable law. |
19 | [unless the prosecuting attorney responsible for the charges |
20 | and the intellectual property owner consent in writing to |
21 | another disposition.] Upon the conclusion of all criminal and |
22 | civil forfeiture proceedings, the court shall order that |
23 | forfeited items bearing or consisting of a counterfeit mark |
24 | be destroyed or alternatively disposed of in another manner |
25 | with the written consent of the trademark owners and the |
26 | prosecuting attorney responsible for the charges. |
27 | (3) If a person is convicted of an offense under this |
28 | section, the court shall order the person to pay restitution |
29 | to the trademark owner and to any other victim of the |
30 | offense. In determining the value of the property loss |
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1 | involving an offense against the trademark owner, a court |
2 | shall grant restitution for all amounts, including expenses |
3 | incurred by the trademark owner in the investigation and |
4 | prosecution of the offense as well as the disgorgement of any |
5 | profits realized by a person convicted of the offense. |
6 | (g) Evidence.--Any Federal or State certificate of |
7 | registration [of any intellectual property] shall be prima facie |
8 | evidence of the facts stated therein. |
9 | (h) Remedies cumulative.--The remedies provided for in this |
10 | section shall be cumulative to the other civil and criminal |
11 | remedies provided by law. |
12 | (i) Definitions.--As used in this section, the following |
13 | words and phrases shall have the meanings given to them in this |
14 | subsection: |
15 | "Bodily injury." The term shall have the same meaning given |
16 | it under section 2301 (relating to definitions). |
17 | "Counterfeit mark." [Any of the following: |
18 | (1) Any unauthorized reproduction or copy of |
19 | intellectual property. |
20 | (2) Intellectual property affixed to any item knowingly |
21 | sold, offered for sale, manufactured or distributed or |
22 | identifying services offered or rendered, without the |
23 | authority of the owner of the intellectual property.] A |
24 | spurious mark that meets all of the following: |
25 | (1) Is applied to, used or intended to be used in |
26 | connection with an item or service. |
27 | (2) Is identical with or substantially indistinguishable |
28 | from a mark registered and in use in this Commonwealth, any |
29 | other state or on the principal register in the United States |
30 | Patent and Trademark Office, whether or not the person knew |
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1 | the mark was registered. |
2 | (3) The application of which is either: |
3 | (i) likely to cause confusion, to cause mistake or |
4 | to deceive; or |
5 | (ii) otherwise intended to be used on or in |
6 | connection with the item or service for which the mark is |
7 | registered. |
8 | ["Intellectual property." Any trademark, service mark, trade |
9 | name, label, term, device, design or word adopted or used by a |
10 | person to identify that person's goods or services.] |
11 | "Item." Any of the following: |
12 | (1) Goods. |
13 | (2) Labels. |
14 | (3) Patches. |
15 | (4) Fabric. |
16 | (5) Stickers. |
17 | (6) Wrappers. |
18 | (7) Badges. |
19 | (8) Emblems. |
20 | (9) Medallions. |
21 | (10) Charms. |
22 | (11) Boxes. |
23 | (12) Containers. |
24 | (13) Cans. |
25 | (14) Cases. |
26 | (15) Hangtags. |
27 | (16) Documentation. |
28 | (17) Packaging. |
29 | (18) Any other components of a type or nature that are |
30 | designed, marketed or otherwise intended to be used on or in |
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1 | connection with any goods or services. |
2 | "Retail value." [The counterfeiter's regular selling price |
3 | for the item or service bearing or identified by the counterfeit |
4 | mark. In the case of items bearing a counterfeit mark which are |
5 | components of a finished product, the retail value shall be the |
6 | counterfeiter's regular selling price of the finished product on |
7 | or in which the component would be utilized.] One of the |
8 | following: |
9 | (1) The counterfeiter's regular selling price for the |
10 | item or service bearing or identified by a counterfeit mark, |
11 | except that it shall be the retail price of the authentic |
12 | counterpart if the item or service bearing or identified by a |
13 | counterfeit mark would appear to a reasonably prudent person |
14 | to be authentic. If no authentic reasonably similar |
15 | counterpart exists, the retail value shall be the |
16 | counterfeiter's regular selling price. |
17 | (2) If the items bearing a counterfeit mark are |
18 | components of a finished product, the retail value shall be |
19 | treated as if each component were a finished good and valued |
20 | under paragraph (1). |
21 | "Serious bodily injury." The term shall have the same |
22 | meaning given it under section 2301 (relating to definitions). |
23 | Section 2. This act shall take effect in 60 days. |
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