Bill Text: PA HB2260 | 2009-2010 | Regular Session | Amended


Bill Title: Providing for the registration, licensing and use of a Pennsylvania Preferred trademark; establishing the Pennsylvania Preferred Trademark Licensing Fund; and providing for penalties and for enforcement.

Spectrum: Moderate Partisan Bill (Democrat 36-8)

Status: (Introduced - Dead) 2010-09-14 - Re-committed to APPROPRIATIONS [HB2260 Detail]

Download: Pennsylvania-2009-HB2260-Amended.html

  

 

PRIOR PRINTER'S NO. 3223

PRINTER'S NO.  3867

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

2260

Session of

2010

  

  

INTRODUCED BY HOUGHTON, HANNA, BRADFORD, BRIGGS, SANTARSIERO, BELFANTI, CALTAGIRONE, DALEY, DONATUCCI, FREEMAN, GEORGE, GIBBONS, GOODMAN, HARHAI, HENNESSEY, HESS, HORNAMAN, HUTCHINSON, JOSEPHS, KORTZ, KULA, LENTZ, LONGIETTI, MANN, MARSHALL, McILVAINE SMITH, M. O'BRIEN, O'NEILL, PARKER, PASHINSKI, PETRARCA, READSHAW, ROHRER, SAINATO, SANTONI, SIPTROTH, K. SMITH, SOLOBAY, STURLA, WHITE, FABRIZIO, BEYER AND GEIST, FEBRUARY 18, 2010

  

  

AS REPORTED FROM COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 8, 2010   

  

  

  

AN ACT

  

1

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

2

Statutes, providing for the registration, licensing and use

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of a Pennsylvania Preferred® trademark; establishing the

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Pennsylvania Preferred® Trademark Licensing Fund; and

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providing for penalties and for enforcement.

6

The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Title 3 of the Pennsylvania Consolidated Statutes

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is amended by adding a chapter to read:

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CHAPTER 46

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PENNSYLVANIA PREFERRED® TRADEMARK

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Sec.

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§ 4601.  Short title of chapter.

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§ 4602.  Declaration of policy.

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§ 4603.  Definitions.

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§ 4604.  Pennsylvania Preferred® trademark.

 


1

§ 4605.  Fees and costs.

2

§ 4606.  Establishment of fund.

3

§ 4607.  Disposition of funds.

4

§ 4608.  Duties and authority of department.

5

§ 4609.  Trademark license agreement, application and licensure

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process.

7

§ 4610.  Pennsylvania-produced agricultural commodity or

<--

8

agricultural product Qualifying standards.

<--

9

§ 4611.  Civil penalties.

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§ 4612.  Injunctive relief.

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§ 4601.  Short title of chapter.

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This chapter shall be known and may be cited as the

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Pennsylvania Preferred Act.

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§ 4602.  Declaration of policy.

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The General Assembly finds and declares as follows:

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(1)  The promotion of the production and consumption of

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Pennsylvania-produced agricultural commodities and

<--

18

agricultural products is of major economic interest in this

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Commonwealth.

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(2)  It is the policy of the Commonwealth to maintain the

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Pennsylvania Preferred® trademark as a uniform, recognizable

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state-of-origin standard for Pennsylvania-produced

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agricultural commodities and agricultural products that are

<--

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produced to all applicable production and quality standards

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and to provide producers and marketers of these commodities

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and products with the opportunity to make use of this

<--

27

trademark for marketing purposes.

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(3)  It is the purpose of this chapter to provide the

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department authority to implement this policy by authorizing

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it to acquire, maintain and license the Pennsylvania

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1

Preferred® trademark and to engage in cooperative

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relationships and other activities in furtherance of

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promoting commerce in Pennsylvania-produced agricultural

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commodities and agricultural products that are licensed to

<--

5

use this trademark.

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§ 4603.  Definitions.

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The following words and terms when used in this chapter shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Agricultural commodity."  As defined in section 4502

<--

11

(relating to definitions). Agricultural, aquacultural,

<--

12

horticultural, viticultural and dairy products, livestock and

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the products thereof, ranch-raised furbearing animals and the

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products thereof, the products of poultry and bee raising,

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forestry and forestry products and any and all products raised

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or produced on farms intended for human consumption and the

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processed or manufactured products thereof intended for human

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consumption, transported or intended to be transported in

19

commerce.

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"FDA."  The Food and Drug Administration of the United States

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Department of Health and Human Services.

22

"Fund."  The Pennsylvania Preferred® Trademark Licensing Fund

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established in section 4606 (relating to establishment of fund).

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

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trademark license agreement with the Department of Agriculture,

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addressing the conditions under which the qualified entity may

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make commercial use of the Pennsylvania Preferred® trademark.

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"Pennsylvania Preferred® trademark."  One or more trademarks

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that consist of the phrase "Pennsylvania Preferred" or "PA

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Preferred," and that may include specific graphic designs or

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1

artwork as part of the trademark registration.

2

"Person."  An individual, partnership, corporation,

3

association or any other legal entity.

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

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prepares, sells or is involved with any aspect of production,

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processing, preparation or sale of Pennsylvania-produced

7

agricultural commodities or agricultural products.

<--

8

"USDA."  The United States Department of Agriculture.

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§ 4604.  Pennsylvania Preferred® trademark.

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The department shall take all actions necessary and

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appropriate to acquire, create, register, maintain, license,

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promote and protect a Pennsylvania Preferred® trademark for use

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on or in connection with the sale or promotion of Pennsylvania-

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produced agricultural commodities and agricultural products.

<--

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§ 4605.  Fees and costs.

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(a)  Trademark license fee.--The department is authorized to

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impose and collect a license fee of up to $100 for the use of

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the Pennsylvania Preferred® trademark in connection with the

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advertising, display, promotion, packaging, marketing or sale of

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Pennsylvania-produced agricultural commodities and agricultural

<--

21

products.

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(b)  Reimbursement of costs.--The department is authorized to

23

charge a licensee for costs incurred by the department in

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connection with that licensee's participation in any activity,

25

trade show, exhibition or other promotional event conducted or

26

facilitated by the department. The charge shall reasonably

27

reflect the costs incurred by the department in facilitating the

28

licensee's participation and may include such costs as

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proportional shares of event registration fees, equipment rental

30

fees, display area rental fees and other costs.

<--

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(b)  Fee interval.--A fee established under subsection (a)

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shall be due each time a person enters into a trademark license

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agreement with the department and each time an existing

4

trademark license agreement is renewed for an additional one-

5

year interval.

6

(c)  Procedure for establishing trademark license fee.--The

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department shall establish the trademark license fee described

8

in subsection (a) through publication of notice in the

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Pennsylvania Bulletin and may revise this fee by the same

10

procedure.

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(d)  Fee interval.--A fee established under subsection (a)

<--

12

shall be due each time a person enters into a trademark license

13

agreement with the department and each time an existing

14

trademark license agreement is renewed for an additional one-

15

year interval.

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(d)  Reimbursement of costs.--The department is authorized to

<--

17

charge a licensee for costs incurred by the department in

18

connection with that licensee's participation in any activity,

19

trade show, exhibition or other promotional event conducted or

20

facilitated by the department. The charge shall reasonably

21

reflect the costs incurred by the department in facilitating the

22

licensee's participation and may include such costs as

23

proportional shares of event registration fees, equipment rental

24

fees, display area rental fees and other costs.

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§ 4606.  Establishment of fund.

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There is established a special fund in the State Treasury, to

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be known as the Pennsylvania Preferred® Trademark Licensing

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Fund, for the following purposes:

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(1)  To promote the licensure and use of the Pennsylvania

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Preferred® trademark with respect to Pennsylvania-produced

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agricultural commodities and agricultural products.

<--

2

(2)  To promote the Pennsylvania Preferred® trademark as

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a standard of origin and quality.

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(3)  To promote Pennsylvania-produced agricultural

5

commodities and agricultural products with respect to which

<--

6

the Pennsylvania Preferred® trademark is licensed.

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

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the Pennsylvania Preferred® trademark, prohibiting the

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unlawful or unauthorized use of the trademark and enforcing

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rights in the trademark.

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(5)  To otherwise fund the department's costs in

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administering and enforcing this chapter.

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§ 4607.  Disposition of funds.

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The following funds shall be credited to the Pennsylvania

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Preferred® Trademark Licensing Fund:

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(1)  Funds derived from the fees established under

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section 4605(a) (relating to fees and costs).

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(2)  Funds derived from the reimbursement of costs

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described in section 4605(b) 4605(d).

<--

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(3)  Funds derived from contributions from any other

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sources and designated by the contributor to be credited to

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the fund.

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(4)  Funds derived from civil penalties collected by the

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department under section 4611 (relating to civil penalties).

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(5)  Any other funds lawfully designated to be credited

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to the fund.

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§ 4608.  Duties and authority of department.

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(a)  Department authority to enter into trademark license

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agreements.--The department is authorized to enter into a

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trademark license agreement with any qualified entity. The

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agreement shall address the conditions under which the qualified

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entity may make commercial use of the Pennsylvania Preferred®

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trademark.

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(b)  Department authority to protect commercial value of  

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trademark.--The department shall include, in a trademark license

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agreement, such terms and requirements as it determines are

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reasonably necessary to ensure that a licensee and the

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Pennsylvania-produced agricultural commodities and agricultural

<--

9

products it markets under the Pennsylvania Preferred® trademark

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are:

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(1)  in compliance with all applicable Federal and State

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standards;

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(2)  produced using current applicable good production

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practices and good management practices acceptable to the

<--

15

department; and

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(3)  produced for introduction into commerce so as to

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create and protect the reputation of commodities and products 

<--

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marketed under the Pennsylvania Preferred® trademark as being

<--

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of good quality.

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(c)  Cooperative activities.--The department is authorized to

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engage in cooperative activities with other entities to

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implement and advance the purposes of this chapter.

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§ 4609.  Trademark license agreement, application and licensure

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process.

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(a)  General rule.--

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(1)  A person may apply to be licensed to use the

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Pennsylvania Preferred® trademark.

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(2)  The application shall be on a form prepared by the

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department and shall require identification information and

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other information the department deems necessary to making a

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1

determination as to whether an applicant is a qualified

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entity.

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(3)  The application form shall be provided by the

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department upon request.

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(4)  The department shall have and exercise discretion to

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determine whether a person is a qualified entity for purposes

7

of this chapter.

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

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qualified entity, it shall offer that qualified entity a

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trademark license agreement, addressing the conditions under

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which the qualified entity may make commercial use of the

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Pennsylvania Preferred® trademark.

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(6)  A trademark license agreement under this chapter

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shall be of no more than one year's duration and shall

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contain provisions allowing for the termination of the

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license agreement by the department upon 60 days' advance

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written notice to the licensee.

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

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license agreement that is in effect prior to the effective date

20

of this chapter and that authorizes the use of the Pennsylvania

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Preferred® trademark shall remain in effect until it is

22

terminated or until the end of the current contract year,

23

whichever occurs first.

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§ 4610.  Pennsylvania-produced agricultural commodity or

<--

25

agricultural product Qualifying standards.

<--

26

A Pennsylvania-produced agricultural commodity or

<--

27

agricultural product includes the following:

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(1)  Fresh unprocessed food, nursery products and other

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agricultural commodities that:

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(i)  are entirely harvested from a Pennsylvania

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location; or

2

(ii)  are grown at a Pennsylvania location for at

3

least 75% of the product's production cycle, inspected by

4

the department, USDA, FDA or an independent certifying

5

agency approved by the department, and are approved by

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the inspecting entity as meeting all applicable quality

7

standards of that inspecting entity with no exceptions.

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(2)  Agricultural products where:

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(i)  the licensee is headquartered has a business

<--

10

location within this Commonwealth;

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(ii)  the final processing and packaging of the

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agricultural product occurs within this Commonwealth; and

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(iii)  the licensee agrees that where the primary

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agricultural ingredients of the processed agricultural

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product are grown within this Commonwealth, the licensee

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shall buy as much of that Pennsylvania-produced

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ingredient as is practical given production season

18

restrictions and other business conditions.

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(3)  Processors or manufacturers of agricultural products

20

where:

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(i)  the licensee is headquartered has a business

<--

22

location within this Commonwealth;

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(ii)  the final processing and packaging of the

24

agricultural product occurs within this Commonwealth; and

25

(iii)  the licensee agrees that where the primary

26

agricultural ingredients of the processed agricultural

27

product are grown within this Commonwealth, the licensee

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shall buy as much of that Pennsylvania-produced

29

ingredient as is practical given production season

30

restrictions and other business conditions.

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(4)  Grocery stores, plant nurseries and other retailers

2

where the licensee:

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(i)  is physically located has a business location 

<--

4

within this Commonwealth; and

5

(ii)  carries at least 50 different Pennsylvania

6

Preferred® commodities or products.

7

(5)  Individual restaurant menu items that include

8

featured Pennsylvania Preferred® ingredients.

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(6)  Restaurants that:

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(i)  are physically located have a business location 

<--

11

within this Commonwealth; and

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(ii)  offer as many Pennsylvania Preferred® items as

13

is practical given production season restrictions and

14

other business conditions.

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(7)  Indirect program participants, such as distributors,

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wholesalers and trade associations that agree to promote use

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of the Pennsylvania Preferred® trademark to their

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constituencies and to use the Pennsylvania Preferred®

19

trademark only in connection with furthering the purposes of

20

this chapter.

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§ 4611.  Civil penalties.

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

23

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

24

license agreement established under this chapter, the department

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may assess a civil penalty upon the person responsible for the

26

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

27

and shall be payable to the Commonwealth and collectible in any

28

manner now or hereafter provided at law for the collection of

29

debt.

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§ 4612.  Injunctive relief.

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In addition to any other remedies provided for in this

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

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

4

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

5

place of business, an action in equity for an injunction to

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restrain violations of this chapter or a trademark license

7

agreement. In any such proceeding, the court shall, upon motion

8

of the Commonwealth, issue a preliminary injunction if it finds

9

that the defendant is engaging in unlawful conduct under this

10

chapter or is engaging in conduct which is causing immediate or

11

irreparable harm to the public. The Commonwealth shall not be

12

required to furnish bond or other security in connection with

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the proceedings. In addition to an injunction, the court, in

14

equity proceedings, may levy civil penalties as provided in

15

section 4611 (relating to civil penalties).

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Section 2.  This act shall take effect in 60 days.

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