Bill Text: CA SB1249 | 2009-2010 | Regular Session | Amended

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Bill Title: Counterfeit marks: donations.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed - Dead) 2010-06-28 - From committee with author's amendments. Read second time. Amended. Re-referred to Com. on B.,P. & C.P. [SB1249 Detail]

Download: California-2009-SB1249-Amended.html

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BILL NUMBER: SB 1249	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 28, 2010
	AMENDED IN SENATE  JUNE 1, 2010
	AMENDED IN SENATE  APRIL 20, 2010
	AMENDED IN SENATE  APRIL 5, 2010

INTRODUCED BY   Senator  Ducheny   Cedillo 

                        FEBRUARY 19, 2010

    An act to add Chapter 2.01 (commencing with Section
10490.10) to Part 2 of Division 2 of the Public Contract Code,
relating to state contracts.   An act to amend Section
350 of the Penal Code, relating to crimes. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1249, as amended,  Ducheny   Cedillo 
.  Contracting by state agencies: best value competitive bid
contracts.   Counterfeit marks: donations.  
   Existing law makes it a misdemeanor or a felony for a person to
willfully manufacture, intentionally sell, or knowingly possess for
sale any counterfeit registered trademark, as specified. Existing law
also requires the court, in any action under those provisions
resulting in a conviction or a plea of nolo contendere, to order the
forfeiture and destruction of all of those marks and matter bearing
the marks, and order the disposition of all devices for
manufacturing, reproducing, transporting, or assembling those marks,
used in connection thereof. Existing law authorizes the court, upon
law enforcement request and consent from the specific registrants, to
consider a motion to have the goods, not including recordings or
audiovisual works, as defined, donated to a nonprofit organization
for the purpose of distributing the goods to persons living in
poverty at no charge to the persons served by the organization. 

   This bill would provide that no person shall be liable for costs,
damages, or other claims or expenses as a result of actions taken or
omitted in good faith in the course of donating goods to a nonprofit
organization pursuant to these provisions, and that no person shall
be criminally prosecuted or be subjected to any criminal penalty as a
result of any action taken or omitted in good faith in the course of
donating those goods.  
   Existing law governs contracting between state agencies and
private contractors, sets forth requirements for the bidding,
awarding, and overseeing of contracts for construction projects, and
regulates the awarding of contracts for the purchase of goods and
services.  
   This bill would permit competitive bid contracts for construction
projects, including, but not limited to, projects of the California
State University, contracts for goods and services, and contracts for
information technology acquisition, to be awarded as best value
competitive bid contracts, as defined, taking into consideration,
when awarding the contract, the total direct and indirect economic
benefit to the state of the proposed contract, as prescribed. The
bill would prohibit the award of a contract to a bidder pursuant to
these provisions if the Director of General Services determines that
the award of the contract to that bidder would result in a net loss
of revenues to the General Fund based on estimates of the total
direct and indirect economic benefit to the state under the contract.
The bill would authorize the Director of General Services to adopt
regulations to assist state agencies in implementing these
provisions. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 350 of the   Penal
Code   is amended to read: 
   350.  (a) Any person who willfully manufactures, intentionally
sells, or knowingly possesses for sale any counterfeit mark
registered with the Secretary of State or registered on the Principal
Register of the United States Patent and Trademark Office, shall,
upon conviction, be punishable as follows:
   (1) When the offense involves less than 1,000 of the articles
described in this subdivision, with a total retail or fair market
value less than that required for grand theft as defined in Section
487, and if the person is an individual, he or she shall be punished
by a fine of not more than five thousand dollars ($5,000), or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment; or, if the person is a business entity,
by a fine of not more than one hundred thousand dollars ($100,000).
   (2) When the offense involves 1,000 or more of the articles
described in this subdivision, or has a total retail or fair market
value equal to or greater than that required for grand theft as
defined in Section 487, and if the person is an individual, he or she
shall be punished by imprisonment in a county jail not to exceed one
year, or in the state prison for 16 months, or two or three years,
or by a fine not to exceed two hundred fifty thousand dollars
($250,000), or by both that imprisonment and fine; or, if the person
is a business entity, by a fine not to exceed five hundred thousand
dollars ($500,000).
   (b) Any person who has been convicted of a violation of either
paragraph (1) or (2) of subdivision (a) shall, upon a subsequent
conviction of paragraph (1) of subdivision (a), if the person is an
individual, be punished by a fine of not more than fifty thousand
dollars ($50,000), or by imprisonment in a county jail for not more
than one year, or in the state prison for 16 months, or two or three
years, or by both that fine and imprisonment; or, if the person is a
business entity, by a fine of not more than two hundred thousand
dollars ($200,000).
   (c) Any person who has been convicted of a violation of
subdivision (a) and who, by virtue of the conduct that was the basis
of the conviction, has directly and foreseeably caused death or great
bodily injury to another through reliance on the counterfeited item
for its intended purpose shall, if the person is an individual, be
punished by a fine of not more than fifty thousand dollars ($50,000),
or by imprisonment in the state prison for two, three, or four
years, or by both that fine and imprisonment; or, if the person is a
business entity, by a fine of not more than two hundred thousand
dollars ($200,000).
   (d) (1) Except as provided in paragraph (2), in any action brought
under this section resulting in a conviction or a plea of nolo
contendere, the court shall order the forfeiture and destruction of
all of those marks and of all goods, articles, or other matter
bearing the marks, and the forfeiture and destruction or other
disposition of all means of making the marks, and any and all
electrical, mechanical, or other devices for manufacturing,
reproducing, transporting, or assembling these marks, that were used
in connection with, or were part of, any violation of this section.
   (2) Upon request of any law enforcement agency and consent from
the specific registrants, the court may consider a motion to have the
items described in paragraph (1), not including recordings or
audiovisual works as defined in Section 653w, donated to a nonprofit
organization for the purpose of distributing the goods to persons
living in poverty at no charge to the persons served by the
organization.  No person, including, but not limited to, a
requesting law   enforcement agency or   a 
 specific registrant, shall be liable under the laws of the state
to any person for costs, damages, or other claims or expenses as a
result of actions taken or omitted in good faith in the course of
donating goods pursuant to this paragraph. No person who is granted
immunity by this paragraph shall be criminally prosecuted or be
subjected to any criminal penalty for or on account of any action
taken or omitted in good faith in the course of donating goods
pursuant to this paragraph. 
   (3) Forfeiture of the proceeds of the crime shall be subject to
Chapter 9 (commencing with Section 186) of Title 7 of Part 1.
However, no vehicle shall be forfeited under this section that may be
lawfully driven on the highway with a class 3 or 4 license, as
prescribed in Section 12804 of the Vehicle Code, and that is any of
the following:
   (A) A community property asset of a person other than the
defendant.
   (B) The sole class 3 or 4 vehicle available to the immediate
family of that person or of the defendant.
   (C) Reasonably necessary to be retained by the defendant for the
purpose of lawfully earning a living, or for any other reasonable and
lawful purpose.
   (e) For the purposes of this section, the following definitions
shall apply:
   (1) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the number of "articles" shall be equivalent to the number
of completed computer software packages that could have been made
from those components.
   (2) "Business entity" includes, but is not limited to, a
corporation, limited liability company, or partnership. "Business
entity" does not include a sole proprietorship.
   (3) "Counterfeit mark" means a spurious mark that is identical
with, or confusingly similar to, a registered mark and is used, or
intended to be used, on or in connection with the same type of goods
or services for which the genuine mark is registered. It is not
necessary for the mark to be displayed on the outside of an article
for there to be a violation. For articles containing digitally stored
information, it shall be sufficient to constitute a violation if the
counterfeit mark appears on a video display when the information is
retrieved from the article. The term "spurious mark" includes genuine
marks used on or in connection with spurious articles and includes
identical articles containing identical marks, where the goods or
marks were reproduced without authorization of, or in excess of any
authorization granted by, the registrant. When counterfeited but
unassembled components of any articles described under subdivision
(a) are recovered, including, but not limited to, labels, patches,
fabric, stickers, wrappers, badges, emblems, medallions, charms,
boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
number of "articles" shall be equivalent to the number of completed
articles that could have been made from those components.
   (4) "Knowingly possess" means that the person possessing an
article knew or had reason to believe that it was spurious, or that
it was used on or in connection with spurious articles, or that it
was reproduced without authorization of, or in excess of any
authorization granted by, the registrant.
   (5) Notwithstanding Section 7, "person" includes, but is not
limited to, a business entity.
   (6) "Registrant" means any person to whom the registration of a
mark is issued and that person's legal representatives, successors,
or assigns.
   (7) "Sale" includes resale.
   (8) "Value" has the following meanings:
   (A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
   (B) When counterfeited but unassembled components of computer
software packages or any other articles described under subdivision
(a) are recovered, including, but not limited to, counterfeited
digital disks, instruction manuals, licensing envelopes, labels,
patches, fabric, stickers, wrappers, badges, emblems, medallions,
charms, boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
"value" of those components shall be equivalent to the retail price
or fair market value of the number of completed computer software
packages or other completed articles described under subdivision (a)
that could have been made from those components.
   (C) "Retail or fair market value" of a counterfeit article means a
value equivalent to the retail price or fair market value, as of the
last day of the charged crime, of a completed similar genuine
article containing a genuine mark.
   (f) This section shall not be enforced against any party who has
adopted and lawfully used the same or confusingly similar mark in the
rendition of like services or the manufacture or sale of like goods
in this state from a date prior to the earliest effective date of
registration of the service mark or trademark either with the
Secretary of State or on the Principle Register of the United States
Patent and Trademark Office.
   (g) An owner, officer, employee, or agent who provides, rents,
leases, licenses, or sells real property upon which a violation of
subdivision (a) occurs shall not be subject to a criminal penalty
pursuant to this section, unless he or she sells, or possesses for
sale, articles bearing a counterfeit mark in violation of this
section. This subdivision shall not be construed to abrogate or limit
any civil rights or remedies for a trademark violation.
   (h) This section shall not be enforced against any party who
engages in fair uses of a mark, as specified in Section 14247 of the
Business and Professions Code.
   (i) When a person is convicted of an offense under this section,
the court shall order the person to pay restitution to the trademark
owner and any other victim of the offense pursuant to Section 1202.4.

  SECTION 1.    It is the intent of the Legislature
to do both of the following:
   (a)  Permit a contract entered into between the state and outside
entities to reflect the true costs, both direct and indirect, of the
contract to the state.
   (b)  Permit the method established for calculating the actual cost
of any contract entered into to include both direct and indirect
economic benefits to the state through the employment of individuals
or companies or both or the purchase of goods or services or both
that generate revenues to the state, including personal or corporate,
or both personal and corporate, income taxes, property taxes, or
sales and use taxes.  
  SEC. 2.    Chapter 2.01 (commencing with Section
10490.10) is added to Part 2 of Division 2 of the Public Contract
Code, immediately following Chapter 2 (commencing with Section
10290), to read:
      CHAPTER 2.01.  BEST VALUE COMPETITIVE BID CONTRACTS


   10490.10.  (a) Notwithstanding any provision of law, commencing
January 1, 2011, every contract that would otherwise be required to
be awarded on a competitive basis pursuant to Chapter 1 (commencing
with Section 10100), Chapter 2 (commencing with Section 10290),
Chapter 2.5 (commencing with Section 10700), Chapter 3 (commencing
with Section 12100), and any other applicable state statute governing
state contracts, may be awarded, instead, as a best value
competitive bid contract to the bid or proposal that presents the
best overall value to the state.
   (b) For purposes of this chapter, "best value competitive bid
contract" means a contract that is awarded on a competitive process
that is not based merely on the lowest direct cost to the state under
the contract, but rather is awarded to the bidder that presents the
overall best value to the state after consideration of the total
direct and indirect economic benefit to the state under the contract,
including, but not limited to, all of the following:
   (1) The direct cost of the contract, including, but not limited
to, materials, goods, and services.
   (2) Indirect value to the state generated by the contract,
including, but not limited to, an analysis of the proposed contract
to determine all of the following:
   (A) (i) The total projected indirect revenue to the state
generated by the wages that the contractor and subcontractors, if
any, propose to pay their workers in performing under the contract.
   (ii) The total projected indirect revenue to California local
governments generated by the wages that the contractor and
subcontractors, if any, propose to pay their workers in performing
under the contract and the indirect revenue to the state generated
thereby.
   (B) (i) The total projected indirect revenue to the state
generated from the goods and materials that the contractor and
subcontractors, if any, propose to purchase or provide in performing
under the contract.
   (ii) The total projected indirect revenue to California local
governments generated by the goods and materials that the contractor
and subcontractors, if any, propose to purchase or deliver in
performing under the contract and the indirect revenue to the state
generated thereby.
   (iii) The indirect economic benefit to the state generated by the
economic activity related to the production of the goods and
materials to be purchased or delivered under the contract.
   (c) The Director of General Services shall adopt regulations that
shall take effect immediately and are exempt from the rulemaking
provisions of the Administrative Procedure Act to provide guidance to
state agencies on best methods and practices and a related matrix to
assist those agencies in determining the overall best value.
   (d) In determining the overall economic benefit to the state of a
proposed contract pursuant to this section, state agencies shall
consider, to the extent not prohibited under federal law, the
location where the wages are to be paid and the location where the
products or materials are to be manufactured or produced.
   (e) No contract shall be awarded to a bidder pursuant to this
chapter if the Director of General Services determines that the award
of the contract to that bidder would result in a net loss of
revenues to the General Fund based on estimates of the total direct
and indirect economic benefit to the state under the contract.