Bill Text: PA HB2133 | 2009-2010 | Regular Session | Introduced

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Bill Title: Further providing for trademark counterfeiting.

Spectrum: Slight Partisan Bill (Democrat 15-5)

Status: (Introduced - Dead) 2010-01-27 - Re-committed to APPROPRIATIONS [HB2133 Detail]

Download: Pennsylvania-2009-HB2133-Introduced.html

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PRINTER'S NO. 2967
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 2133 Session of2009
INTRODUCED BY SHAPIRO, CALTAGIRONE, BRADFORD, BRIGGS, BROWN, CURRY, DENLINGER, FABRIZIO, GOODMAN, HARKINS, MANN, McGEEHAN, MILLER, O'NEILL, PAYTON, PYLE, SIPTROTH, K. SMITH, WATERS AND WATSON, DECEMBER 4, 2009
REFERRED TO COMMITTEE ON JUDICIARY, DECEMBER 4, 2009
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, further providing for trademark
counterfeiting.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 4119 of Title 18 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 4119. Trademark counterfeiting.
(a) Offense defined.--Any person who knowingly
[manufactures, uses, displays, advertises, distributes, offers
for sale, sells or possesses with intent to sell or distribute]
and with intent to sell or to otherwise transfer for purposes of
commercial advantage or private financial gain:
(1) manufactures;
(2) sells;
(3) offers for sale;
(4) displays;
(5) advertises;
(6) distributes; or
(7) transports
any items or services bearing or identified by a counterfeit
mark shall be guilty of the crime of trademark counterfeiting.
(b) [Presumption.--A person having possession, custody or
control of more than 25 items bearing a counterfeit mark may be
presumed to possess said items with intent to sell or
distribute.] (Reserved).
(c) Penalties.--
(1) Except as provided in paragraphs (2) and (3), a
violation of this section constitutes a misdemeanor of the
first degree.
(2) A violation of this section constitutes a felony of
the third degree if:
(i) the defendant has previously been convicted
under this section; or
(ii) the violation involves more than 100 but less
than 1,000 items bearing a counterfeit mark or the total
retail value of all items or services bearing or
identified by a counterfeit mark is more than $2,000, but
less than $10,000.
(3) A violation of this section constitutes a felony of
the second degree if:
(i) the defendant has been previously convicted of
two or more offenses under this section;
(ii) the violation involves the manufacture or
production of items bearing counterfeit marks; or
(iii) the violation involves 1,000 or more items
bearing a counterfeit mark or the total retail value of
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all items or services bearing or identified by a
counterfeit mark is more than $10,000.
(d) Quantity or retail value.--The quantity or retail value
of items or services shall include the aggregate quantity or
retail value of all items or services [bearing or identified by
every counterfeit mark] the defendant manufactures, [uses,
displays, advertises, distributes, offers for sale, sells or
possesses] sells, offers for sale, displays, advertises,
distributes or transports.
(e) Fine.--Any person convicted under this section shall be
fined in accordance with existing law or an amount up to three
times the retail value of the items or services bearing or
identified by a counterfeit mark, whichever is greater.[, unless
extenuating circumstances are shown by the defendant.]
(f) Seizure, forfeiture and disposition.--
(1) Any items bearing a counterfeit mark, any property
constituting or derived from any proceeds obtained, directly
or indirectly, as the result of an offense under this section
and all personal property, including, but not limited to, any
items, objects, tools, machines, equipment, instrumentalities
or vehicles of any kind, [knowingly employed or] used in
connection with a violation of this section [may] shall be
seized by [any] a law enforcement officer.
(2) (i) All seized personal property referenced in
paragraph (1) shall be forfeited in accordance with
[applicable law unless the prosecuting attorney
responsible for the charges and the intellectual property
owner consent in writing to another disposition.] the
procedures set forth in section 6501(d) (relating to
scattering rubbish).
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(ii) Upon the conclusion of all criminal and civil
forfeiture proceedings, the court shall order that
forfeited items bearing or consisting of a counterfeit
mark be destroyed or alternatively disposed of in another
manner with the written consent of the trademark owners
and the prosecuting attorney responsible for the charges.
(3) (i) If a person is convicted of an offense under
this section, the court shall order the person to pay
restitution to the trademark owner and to any other
victim of the offense.
(ii) In determining the value of the property loss
involving an offense against the trademark owner, a court
shall grant restitution for all amounts, including
expenses incurred by the trademark owner in the
investigation and prosecution of the offense, as well as
the disgorgement of any profits realized by a person
convicted of the offense.
(g) Evidence.--Any Federal or State certificate of
registration [of any intellectual property] shall be prima facie
evidence of the facts stated therein.
(h) Remedies cumulative.--The remedies provided for in this
section shall be cumulative to the other civil and criminal
remedies provided by law.
(i) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Counterfeit mark." [Any of the following:
(1) Any unauthorized reproduction or copy of
intellectual property.
(2) Intellectual property affixed to any item knowingly
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sold, offered for sale, manufactured or distributed or
identifying services offered or rendered, without the
authority of the owner of the intellectual property.] A
spurious mark that meets all of the following:
(1) Is applied to, used or intended to be used in
connection with an item or service.
(2) Is identical with or substantially indistinguishable
from a mark registered and in use in this Commonwealth, any
other state or on the principal register in the United States
Patent and Trademark Office, whether or not the person knew
the mark was registered.
(3) The application of which is either:
(i) likely to cause confusion, to cause mistake or
to deceive; or
(ii) otherwise intended to be used on or in
connection with the item or service for which the mark is
registered.
["Intellectual property." Any trademark, service mark, trade
name, label, term, device, design or word adopted or used by a
person to identify that person's goods or services.]
"Item." Any of the following:
(1) Goods.
(2) Labels.
(3) Patches.
(4) Fabric.
(5) Stickers.
(6) Wrappers.
(7) Badges.
(8) Emblems.
(9) Medallions.
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(10) Charms.
(11) Boxes.
(12) Containers.
(13) Cans.
(14) Cases.
(15) Hangtags.
(16) Documentation.
(17) Packaging.
(18) Any other components of a type or nature that are
designed, marketed or otherwise intended to be used on or in
connection with any goods or services.
"Retail value." [The counterfeiter's regular selling price
for the item or service bearing or identified by the counterfeit
mark. In the case of items bearing a counterfeit mark which are
components of a finished product, the retail value shall be the
counterfeiter's regular selling price of the finished product on
or in which the component would be utilized.] One of the
following:
(1) The counterfeiter's regular selling price for the
item or service bearing or identified by a counterfeit mark,
except that it shall be the retail price of the authentic
counterpart if the item or service bearing or identified by a
counterfeit mark would appear to a reasonably prudent person
to be authentic. If no authentic reasonably similar
counterpart exists, the retail value shall be the
counterfeiter's regular selling price.
(2) If the items bearing a counterfeit mark are
components of a finished product, the retail value shall be
treated as if each component were a finished good and valued
under paragraph (1).
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Section 2. This act shall take effect in 60 days.
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