Regular Session 2015-2016 House Bill 0180 P.N. 2374

PRIOR PRINTER'S NO. 357

PRINTER'S NO. 2374

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

180

Session of

2015

INTRODUCED BY GOODMAN, EVANKOVICH, SCHLOSSBERG, BARBIN, BARRAR,

BISHOP, BIZZARRO, BOBACK, BOYLE, R. BROWN, BROWNLEE,

CALTAGIRONE, CARROLL, COHEN, CONKLIN, D. COSTA, P. COSTA,

M. DALEY, P. DALEY, DAVIS, DEAN, DEASY, DeLISSIO, DeLUCA,

DERMODY, DONATUCCI, DUNBAR, EMRICK, EVERETT, FABRIZIO,

FARINA, FRANKEL, FREEMAN, GABLER, GAINEY, GALLOWAY, GIBBONS,

HAHN, HANNA, HARHAI, HARKINS, JAMES, W. KELLER, KIM, KNOWLES,

KORTZ, KOTIK, LAWRENCE, LONGIETTI, MACKENZIE, MARKOSEK,

MARSHALL, MARSICO, MASSER, MATZIE, McCARTER, McNEILL,

D. MILLER, MULLERY, MURT, NEUMAN, O'BRIEN, OBERLANDER,

ORTITAY, C. PARKER, PASHINSKI, PEIFER, PYLE, RAVENSTAHL,

READSHAW, SABATINA, SACCONE, SAINATO, SAMUELSON, SAYLOR,

SCHREIBER, SIMMONS, SIMS, SNYDER, STEPHENS, STURLA, TALLMAN,

THOMAS, TOBASH, WATERS, WATSON, YOUNGBLOOD, ZIMMERMAN, MOUL,

QUINN, TOOHIL, FARRY AND SCHLEGEL CULVER, FEBRUARY 5, 2015

AS REPORTED FROM COMMITTEE ON COMMERCE, HOUSE OF

REPRESENTATIVES, AS AMENDED, OCTOBER 19, 2015

AN ACT

Providing for Made in PA® trademark, for licensee qualification,

for duties and authority of department, for trademark license

agreement, application and licensure process and for costs;

establishing the Made in PA® Trademark Licensing Fund; and

providing for civil penalties, for injunctive relief and for

rules and regulations.

PROVIDING FOR THE MADE IN PA PROGRAM, FOR DUTIES AND AUTHORITY

OF DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT,

APPLICATION PROCESS AND FOR COSTS; ESTABLISHING THE MADE IN

PA PROGRAM FUND; AND PROVIDING FOR CIVIL PENALTIES, FOR

INJUNCTIVE RELIEF AND FOR RULES AND REGULATIONS.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the Made in PA®

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Act.

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Department." The Department of Community and Economic

Development of the Commonwealth.

"Fund." The Made in PA® Trademark Licensing Fund established

in section 8.

"Licensee." A qualified entity that is subject to a current

Made in PA® trademark license agreement with the department.

"Made in PA® trademark." One or more trademarks that:

(1) consist of the phrase "Made in PA" or "Made in

Pennsylvania"; and

(2) may include specific graphic designs or artwork as

part of the trademark registration.

"Pennsylvania-made commodity." Tangible products produced or

manufactured in this Commonwealth by a business and that are

transported or intended to be transported in commerce.

"Qualified entity." A person that produces, manufactures,

sells, offers for sale, markets or promotes Pennsylvania-made

commodities.

Section 3. Made in PA® trademark.

The department shall take the actions necessary and

appropriate to create, register, maintain, license, promote and

protect a Made in PA® trademark for use on or in connection with

the sale, marketing or promotion of a Pennsylvania-made

commodity.

Section 4. Licensee qualification.

To become a licensee a qualified entity must be:

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(1) a person that produces or manufactures a

Pennsylvania-made commodity in whole or in part at a facility

located within this Commonwealth;

(2) a person that promotes or markets a Pennsylvania-

made commodity from a person that satisfies the provisions of

paragraph (1); or

(3) a person approved by the department to use and

promote the use of the Made in PA® trademark to

constituencies in furthering the purposes of this act.

Section 5. Duties and authority of department.

(a) Authority to enter into trademark license agreements.--

The department:

(1) May enter into a trademark license agreement with a

qualified entity.

(2) Shall establish the terms and conditions under which

a person may be licensed to use the Made in PA® trademark.

Terms and conditions must require a licensee to produce,

process, promote or market a Pennsylvania-made commodity in a

manner acceptable to the department that protects the

reputation of the Made in PA® trademark.

(3) May periodically review a licensing agreement to

determine if the terms are being met.

(b) Cooperative activities.--The department may engage in

cooperative activities to implement and advance the purposes of

this act.

(1) The department shall compile a list of the qualified

entities who become licensees under this act. The list shall

be made available to the public on the department's Internet

website and for other public distribution as the department

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approves.

(2) The list shall be updated every three months and

include:

(i) the Pennsylvania-made commodity produced,

manufactured or promoted by the licensee;

(ii) contact information for the licensee that may

include an Internet website link; and

(iii) one or more locations where the Pennsylvania-

made commodity may be purchased.

Section 6. Trademark license agreement, application and

licensure process.

(a) General rules.--

(1) A qualified entity may apply to be licensed to use

the Made in PA® trademark.

(2) An application must:

(i) be on a form prepared by the department; and

(ii) require identification information and other

information the department deems necessary to determine

if an applicant is a qualified entity.

(3) The application form shall be provided by the

department upon request.

(4) The department may determine whether a person is a

qualified entity for purposes of this act.

(5) If the department determines that an applicant is a

qualified entity, it shall offer that qualified entity a

trademark license agreement.

(6) A trademark license agreement under this act is

effective for one year from the date upon which an agreement

is executed and may be renewed. An agreement must contain

provisions allowing for the termination of the license

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agreement by the department or a licensee upon 60 days'

advance written notice to the other party.

(b) Preexisting trademark license agreements.--A trademark

license agreement that is in effect prior to the effective date

of this section and authorizes the use of a Made in PA®

trademark remains in effect until it is terminated or until the

end of the current contract year, whichever occurs first.

Section 7. Costs.

(a) Charge for costs.--The department may charge a licensee

for costs incurred by the department in connection with the

licensee's participation in an activity, trade show, exhibition

or other promotional event conducted or facilitated by the

department. A charge must reasonably reflect the costs incurred

by the department in facilitating the licensee's participation

and may include the costs as proportional shares of event

registration fees, equipment rental fees, display area rental

fees and related costs.

(b) Cost of promotional materials.--The department may

charge a licensee for costs of Made in PA® promotional materials

provided by the department at the request of the licensee.

Section 8. Made in PA® Trademark Licensing Fund.

(a) Establishment.--There is established in the State

Treasury a special fund to be known as the Made in PA® Trademark

Licensing Fund. The fund shall be an interest-bearing restricted

revenue account. The following money shall be deposited into the

fund:

(1) Money appropriated or given for the purpose

established under this act by the Federal Government, the

Commonwealth or another government or private agency or

person.

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(2) Funds derived from the costs established under

section 7.

(3) Funds derived from civil penalties collected by the

department under section 9.

(b) Appropriation.--Money in the fund is appropriated on a

continuing basis to the department for the purpose of

administering this act. The interest and earnings received from

investment or deposit of the money in the fund shall be paid

into the account for the purpose authorized by this section.

Unexpended money and interest or earnings on the money in the

fund may not be transferred or revert to the General Fund, but

shall remain in the account to be used by the department for the

purpose specified under this section.

(1) promote the licensure and use of the Made in PA®

trademark with respect to Pennsylvania-made commodities;

(2) promote the Made in PA® trademark as an

identification of origin and quality;

(3) promote Pennsylvania-made commodities with respect

to which the Made in PA® trademark is licensed;

(4) pay costs associated with monitoring the use of the

Made in PA® trademark to prohibit the unlawful or

unauthorized use of the trademark and enforcing rights of the

trademark; and

(5) otherwise fund the department's costs in

administering and enforcing this act.

Section 9. Civil penalties.

In addition to any other remedy available at law or in equity

for a violation of a provision of this act or a trademark

license agreement established under this act, the department may

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assess a civil penalty upon the person responsible for the

violation. The civil penalty assessed may not exceed $10,000 and

is payable to the Commonwealth and collectible in a manner

provided under law for the collection of debt.

Section 10. Injunctive relief.

In addition to the other remedies provided under this act,

the Attorney General, at the request of the department, may

initiate, in Commonwealth Court or the court of common pleas of

the county in which the defendant resides or has his place of

business, an action in equity for an injunction to restrain

violations of this act or a trademark license agreement. In the

proceeding, the court shall, upon motion of the Commonwealth,

issue a preliminary injunction if it finds the defendant is

engaging in unlawful conduct under this act or is engaging in

conduct that is causing immediate or irreparable harm to the

public. The Commonwealth may not be required to furnish bond or

other security in connection with the proceedings. In addition

to an injunction, the court, in equity proceedings, may levy

civil penalties as provided under section 9.

Section 11. Rules and regulations.

The department shall promulgate rules and regulations

necessary to promote the efficient, uniform and Statewide

administration of this act. For two years from the effective

date of this section, the department may promulgate, adopt and

use guidelines to implement the provisions of this act. The

guidelines must be published in the Pennsylvania Bulletin but

shall not be subject to review under section 205 of the act of

July 31, 1968 (P.L.769, No.240), referred to as the Commonwealth

Documents Law, sections 204(b) and 301(10) of the act of October

15, 1980 (P.L.950, No.164), known as the Commonwealth Attorneys

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Act, or the act of June 25, 1982 (P.L.633, No.181), known as the

Regulatory Review Act. The guidelines shall expire no later than

December 31, 2017, and must be replaced by regulations that have

been promulgated, adopted and published as provided under law.

Section 12. Effective date.

This act shall take effect in 60 days.

SECTION 1. SHORT TITLE.

THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE MADE IN PA

ACT.

SECTION 2. DEFINITIONS.

THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL

HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE

CONTEXT CLEARLY INDICATES OTHERWISE:

"DEPARTMENT." THE DEPARTMENT OF COMMUNITY AND ECONOMIC

DEVELOPMENT OF THE COMMONWEALTH.

"FUND." THE MADE IN PA FUND ESTABLISHED IN SECTION 7.

"MADE IN PA LOGO." ONE OR MORE LOGOS THAT:

(1) CONSIST OF THE PHRASE "MADE IN PA" OR "MADE IN

PENNSYLVANIA"; AND

(2) MAY INCLUDE SPECIFIC GRAPHIC DESIGNS OR ARTWORK AS

PART OF THE PROGRAM.

"MEMBER." A QUALIFIED ENTITY THAT IS SUBJECT TO A CURRENT

MADE IN PA MEMBERSHIP AGREEMENT WITH THE DEPARTMENT.

"PENNSYLVANIA-MADE COMMODITY." TANGIBLE PRODUCTS THAT ARE

PRODUCED, MANUFACTURED OR ASSEMBLED IN THIS COMMONWEALTH BY A

BUSINESS AND ARE TRANSPORTED OR INTENDED TO BE TRANSPORTED IN

COMMERCE.

"PROGRAM." THE MADE IN PA PROGRAM.

"QUALIFIED ENTITY." A BUSINESS THAT:

(1) OFFERS A PENNSYLVANIA-MADE COMMODITY WHICH HAS BEEN

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PRODUCED, MANUFACTURED OR ASSEMBLED BY THE BUSINESS;

(2) HAS A PHYSICAL BUSINESS LOCATION WITHIN THIS

COMMONWEALTH; AND

(3) IS IN GOOD STANDING WITH THE DEPARTMENT OF REVENUE

AND IS CURRENT ON ALL STATE TAXES.

SECTION 3. MEMBER QUALIFICATION.

TO BECOME A MEMBER, A BUSINESS MUST:

(1) SUBMIT AN APPLICATION, ALONG WITH A PROCESSING FEE

PRESCRIBED BY THE DEPARTMENT, ON A FORM PROVIDED BY THE

DEPARTMENT;

(2) RECEIVE CERTIFICATION FROM THE DEPARTMENT THAT IT IS

A QUALIFIED ENTITY;

(3) MEET ANY OTHER QUALIFICATIONS DEEMED NECESSARY BY

THE DEPARTMENT; AND

(4) ENTER INTO A MEMBERSHIP AGREEMENT WITH THE

DEPARTMENT.

SECTION 4. DUTIES AND AUTHORITY OF DEPARTMENT.

(A) AUTHORITY TO ENTER INTO MADE IN PA MEMBERSHIP

AGREEMENTS.--THE DEPARTMENT:

(1) SHALL ENTER INTO A MEMBERSHIP AGREEMENT WITH A

BUSINESS WHICH QUALIFIES FOR MEMBERSHIP UNDER SECTION 3.

(2) MAY PERIODICALLY REVIEW A MEMBERSHIP AGREEMENT TO

DETERMINE IF THE TERMS ARE BEING MET.

(3) MAY CHARGE AN ANNUAL FEE TO BUSINESSES WHICH ARE

MEMBERS OF THE PROGRAM.

(4) MAY UNILATERALLY TERMINATE ANY MEMBERSHIP AGREEMENT

UPON A DETERMINATION THAT THE MEMBERSHIP AGREEMENT HAS BEEN

VIOLATED BY THE MEMBER.

(B) COOPERATIVE ACTIVITIES.--THE DEPARTMENT MAY ENGAGE IN

COOPERATIVE ACTIVITIES TO IMPLEMENT AND ADVANCE THE PURPOSES OF

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THIS ACT. THE DEPARTMENT AND THE PENNSYLVANIA DEPARTMENT OF

AGRICULTURE SHALL COORDINATE THE ADMINISTRATION OF THE PROGRAMS

AUTHORIZED BY THIS ACT AND 3 PA.C.S. CH. 46 (RELATING TO

PENNSYLVANIA PREFERRED® TRADEMARK) AND SHALL WORK JOINTLY IN THE

FURTHERANCE OF THE INTERESTS OF MANUFACTURING AND AGRICULTURE IN

THIS COMMONWEALTH. NOTHING CONTAINED IN THIS ACT SHALL REPEAL,

SUPERSEDE OR RESTRICT THE PROVISIONS OF 3 PA.C.S. CH. 46 AND THE

DUTIES AND OPERATIONS OF THE PENNSYLVANIA DEPARTMENT OF

AGRICULTURE.

SHALL APPLY:

(1) THE DEPARTMENT SHALL COMPILE A LIST OF THE QUALIFIED

ENTITIES WHO BECOME MEMBERS UNDER THIS ACT. THE LIST SHALL BE

MADE AVAILABLE TO THE PUBLIC ON THE DEPARTMENT'S PUBLICLY

ACCESSIBLE INTERNET WEBSITE AND FOR OTHER PUBLIC DISTRIBUTION

AS THE DEPARTMENT APPROVES.

(2) THE LIST COMPLIED UNDER PARAGRAPH (1) SHALL BE

UPDATED EVERY THREE MONTHS AND INCLUDE:

(I) THE PENNSYLVANIA-MADE COMMODITY OFFERED;

(II) CONTACT INFORMATION FOR THE MEMBER THAT MAY

INCLUDE AN INTERNET WEBSITE LINK; AND

(III) ONE OR MORE METHODS THROUGH WHICH THE

PENNSYLVANIA-MADE COMMODITY MAY BE PURCHASED.

SECTION 5. MEMBER AGREEMENTS PROCESS.

A MEMBERSHIP AGREEMENT UNDER THIS ACT IS EFFECTIVE FOR ONE

YEAR FROM THE DATE UPON WHICH AN AGREEMENT IS EXECUTED AND MAY

BE RENEWED. AN AGREEMENT MUST CONTAIN PROVISIONS ALLOWING FOR

THE TERMINATION OF THE MEMBERSHIP AGREEMENT BY A MEMBER UPON 60

DAYS' ADVANCE WRITTEN NOTICE TO THE DEPARTMENT.

SECTION 6. COSTS.

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(A) CHARGE FOR COSTS.--THE DEPARTMENT MAY CHARGE A MEMBER

FOR COSTS INCURRED BY THE DEPARTMENT IN CONNECTION WITH THE

MEMBER'S PARTICIPATION IN AN ACTIVITY, TRADE SHOW, EXHIBITION OR

OTHER PROMOTIONAL EVENT CONDUCTED OR FACILITATED BY THE

DEPARTMENT. A CHARGE MUST REASONABLY REFLECT THE COSTS INCURRED

BY THE DEPARTMENT IN FACILITATING THE MEMBER'S PARTICIPATION AND

MAY INCLUDE THE COSTS AS PROPORTIONAL SHARES OF EVENT

REGISTRATION FEES, EQUIPMENT RENTAL FEES, DISPLAY AREA RENTAL

FEES AND RELATED COSTS.

(B) COST OF PROMOTIONAL MATERIALS.--THE DEPARTMENT MAY

CHARGE A MEMBER FOR COSTS OF MADE IN PA PROMOTIONAL MATERIALS

PROVIDED BY THE DEPARTMENT AT THE REQUEST OF THE MEMBER.

SECTION 7. MADE IN PA FUND.

(A) ESTABLISHMENT.--THERE IS ESTABLISHED IN THE STATE

TREASURY A RESTRICTED ACCOUNT TO BE KNOWN AS THE MADE IN PA

FUND. THE FUND SHALL BE AN INTEREST-BEARING RESTRICTED REVENUE

ACCOUNT. THE FOLLOWING MONEY SHALL BE DEPOSITED INTO THE FUND:

(1) MONEY APPROPRIATED OR GIVEN FOR THE PURPOSE

ESTABLISHED UNDER THIS ACT BY THE FEDERAL GOVERNMENT, THE

COMMONWEALTH, ANY OTHER GOVERNMENT AGENCY OR ANY PRIVATE OR

PUBLIC ENTITY OR PERSON.

(2) FUNDS DERIVED FROM THE COSTS ESTABLISHED UNDER

SECTION 6.

(3) FUNDS DERIVED FROM CIVIL PENALTIES COLLECTED BY THE

DEPARTMENT UNDER SECTION 8.

(4) INTEREST AND EARNINGS RECEIVED FROM INVESTMENT OR

DEPOSIT OF MONEY IN THE FUND.

(5) FEES COLLECTED UNDER SECTIONS 3 AND 4.

(B) APPROPRIATION.--MONEY IN THE FUND IS APPROPRIATED TO THE

DEPARTMENT ON A CONTINUING BASIS. THE INTEREST AND EARNINGS

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RECEIVED FROM INVESTMENT OR DEPOSIT OF THE MONEY IN THE FUND

SHALL BE PAID INTO THE ACCOUNT FOR THE PURPOSE AUTHORIZED BY

THIS SECTION. UNEXPENDED MONEY AND INTEREST OR EARNINGS ON THE

MONEY IN THE FUND MAY NOT BE TRANSFERRED OR REVERT TO THE

GENERAL FUND, BUT SHALL REMAIN IN THE ACCOUNT TO BE USED BY THE

DEPARTMENT FOR THE PURPOSE SPECIFIED UNDER THIS SECTION.

(1) PROMOTE PENNSYLVANIA-MADE COMMODITIES;

(2) PROMOTE MADE IN PA AS AN IDENTIFICATION OF ORIGIN

AND QUALITY;

(3) PROMOTE PENNSYLVANIA-MADE COMMODITIES WITH RESPECT

TO WHICH THE MADE IN PA LOGO IS LICENSED;

(4) PAY COSTS ASSOCIATED WITH MONITORING THE USE OF THE

MADE IN PA LOGO TO PROHIBIT THE UNLAWFUL OR UNAUTHORIZED USE

OF THE MADE IN PA LOGO AND ENFORCING RIGHTS OF THE MADE IN PA

LOGO; AND

(5) OTHERWISE FUND THE DEPARTMENT'S COSTS IN

ADMINISTERING AND ENFORCING THIS ACT.

(D) PROGRAM SUSPENSION.--THE DUTY OF THE DEPARTMENT TO

ADMINISTER THIS ACT SHALL BE SUSPENDED AT THE TIME THAT THE FUND

NO LONGER CONTAINS SUFFICIENT REVENUES TO ADMINISTER THE

PROGRAM.

SECTION 8. CIVIL PENALTIES.

IN ADDITION TO ANY OTHER REMEDY AVAILABLE AT LAW OR IN EQUITY

FOR A VIOLATION OF A PROVISION OF THIS ACT OR A MEMBERSHIP

AGREEMENT ESTABLISHED UNDER THIS ACT, THE DEPARTMENT MAY ASSESS

A CIVIL PENALTY UPON THE PERSON OR ENTITY RESPONSIBLE FOR THE

VIOLATION. THE CIVIL PENALTY ASSESSED MAY NOT EXCEED $10,000 AND

IS PAYABLE TO THE COMMONWEALTH AND COLLECTIBLE IN A MANNER

PROVIDED UNDER LAW FOR THE COLLECTION OF DEBT.

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SECTION 9. INJUNCTIVE RELIEF.

IN ADDITION TO THE OTHER REMEDIES PROVIDED UNDER THIS ACT,

THE ATTORNEY GENERAL, AT THE REQUEST OF THE DEPARTMENT, MAY

INITIATE, IN COMMONWEALTH COURT OR THE COURT OF COMMON PLEAS OF

THE COUNTY IN WHICH THE DEFENDANT RESIDES OR HAS HIS PLACE OF

BUSINESS, AN ACTION IN EQUITY FOR AN INJUNCTION TO RESTRAIN

VIOLATIONS OF THIS ACT OR A MEMBERSHIP AGREEMENT. IN THE

PROCEEDING, THE COURT SHALL, UPON MOTION OF THE COMMONWEALTH,

ISSUE A PRELIMINARY INJUNCTION IF IT FINDS THE DEFENDANT IS

ENGAGING IN UNLAWFUL CONDUCT UNDER THIS ACT OR IS ENGAGING IN

CONDUCT THAT IS CAUSING IMMEDIATE OR IRREPARABLE HARM TO THE

PUBLIC. THE COMMONWEALTH MAY NOT BE REQUIRED TO FURNISH BOND OR

OTHER SECURITY IN CONNECTION WITH THE PROCEEDINGS. IN ADDITION

TO AN INJUNCTION, THE COURT, IN EQUITY PROCEEDINGS, MAY LEVY

CIVIL PENALTIES AS PROVIDED UNDER SECTION 8.

SECTION 10. RULES AND REGULATIONS.

THE DEPARTMENT MAY PROMULGATE RULES AND REGULATIONS NECESSARY

TO PROMOTE THE EFFICIENT, UNIFORM AND STATEWIDE ADMINISTRATION

OF THIS ACT. EVERY TWO YEARS FROM THE EFFECTIVE DATE OF THIS

SECTION, THE DEPARTMENT SHALL PROMULGATE, ADOPT AND USE

GUIDELINES TO IMPLEMENT THE PROVISIONS OF THIS ACT. THE

GUIDELINES MUST BE PUBLISHED IN THE PENNSYLVANIA BULLETIN BUT

SHALL NOT BE SUBJECT TO REVIEW UNDER SECTION 205 OF THE ACT OF

JULY 31, 1968 (P.L.769, NO.240), REFERRED TO AS THE COMMONWEALTH

DOCUMENTS LAW, SECTIONS 204(B) AND 301(10) OF THE ACT OF OCTOBER

15, 1980 (P.L.950, NO.164), KNOWN AS THE COMMONWEALTH ATTORNEYS

ACT, OR THE ACT OF JUNE 25, 1982 (P.L.633, NO.181), KNOWN AS THE

REGULATORY REVIEW ACT.

SECTION 11. EFFECTIVE DATE.

THIS ACT SHALL TAKE EFFECT IN 60 DAYS.

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