[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1136 Reported in Senate (RS)]

                                                       Calendar No. 250

104th CONGRESS

  1st Session

                                S. 1136

                          [Report No. 104-177]

_______________________________________________________________________

                                 A BILL

    To control and prevent commercial counterfeiting, and for other 
                               purposes.

_______________________________________________________________________

                           November 28, 1995

                        Reported with amendments
                                                       Calendar No. 250
104th CONGRESS
  1st Session
                                S. 1136

                          [Report No. 104-177]

    To control and prevent commercial counterfeiting, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               August 9 (legislative day, July 10), 1995

 Mr. Hatch (for himself, Mr. Leahy, Mr. Thurmond, Mr. Brown, Mr. Kyl, 
Mr. Abraham, Mrs. Feinstein, Mr. Simpson, Mr. D'Amato, Mr. Lautenberg, 
Mr. Heflin, and Ms. Moseley-Braun) introduced the following bill; which 
     was read twice and referred to the Committee on the Judiciary

                           November 28, 1995

                 Reported by Mr. Hatch with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
    To control and prevent commercial counterfeiting, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Anticounterfeiting Consumer 
Protection Act of 1995''.

SEC. 2. FINDINGS.

    The counterfeiting of trademarked and copyrighted merchandise--
            (1) has been connected with organized crime;
            (2) deprives legitimate trademark and copyright owners of 
        substantial revenues and consumer goodwill;
            (3) poses health and safety threats to American consumers;
            (4) eliminates American jobs; and
            (5) is a multibillion-dollar drain on the United States 
        economy.

SEC. 3. COUNTERFEITING AS RACKETEERING.

    Section 1961(1)(B) of title 18, United States Code, is amended by 
inserting ``, section 2318 (relating to trafficking in counterfeit 
labels for phonorecords, computer programs or computer program 
documentation or packaging and copies of motion pictures or other 
audiovisual works), section 2319 (relating to criminal infringement of 
a copyright), section 2320 (relating to trafficking in goods or 
services bearing counterfeit marks)'' after ``sections 2314 and 2315 
(relating to interstate transportation of stolen property)''.

SEC. 4. APPLICATION TO COMPUTER PROGRAMS, COMPUTER PROGRAM 
              DOCUMENTATION, OR PACKAGING.

    Section 2318 of title 18, United States Code, is amended--
            (1) in subsection (a), by inserting ``a computer program or 
        computer program documentation or packaging or'' after ``copy 
        of'';
            (2) in subsection (b)(3), by inserting ```computer 
        program,''' after ```motion picture,'''; and
            (3) in subsection (c)(3), by inserting ``a copy of a 
        computer program or computer program documentation or 
        packaging,'' after ``enclose,''.

SEC. 5. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.

    Section 2320 of title 18, United States Code, is amended by adding 
at the end the following new subsection:
    ``(e) Beginning with the first year after the date of enactment of 
this subsection, the Attorney General shall include in the report of 
the Attorney General to Congress on the business of the Department of 
Justice prepared pursuant to section 522 of title 28, on a district by 
district basis, for all actions involving trafficking in counterfeit 
labels for phonorecords, copies of computer programs or computer 
program documentation or packaging, copies of motion pictures or other 
audiovisual works (as defined in section 2318 of title 18), criminal 
infringement of copyrights (as defined in section 2319 of title 18), or 
trafficking in goods or services bearing counterfeit marks (as defined 
in section 2320 of title 18, an accounting of--
            ``(1) the number of open investigations;
            ``(2) the number of cases referred by the United States 
        Customs Service;
            ``(3) the number of cases referred by other agencies or 
        sources; and
            ``(4) the number and outcome, including settlements, 
        sentences, recoveries, and penalties, of all prosecutions 
        brought under sections 2318, 2319, and 2320 of title 18.''.

SEC. 6. SEIZURE OF COUNTERFEIT GOODS.

    Section 34(d)(9) of the Act of July 5, 1946 (60 Stat. 427, chapter 
540; 15 U.S.C. 1116(d)(9)), is amended by striking the first sentence 
and inserting the following: ``The court shall order that service of a 
copy of the order under this subsection shall be made by a Federal law 
enforcement officer (such as a United States marshal or an officer or 
agent of the United States Customs Service, Secret Service, Federal 
Bureau of Investigation, or Post Office) or may be made by a State or 
local law enforcement officer, who, upon making service, shall carry 
out the seizure under the order.''.

SEC. 7. RECOVERY FOR VIOLATION OF RIGHTS.

    Section 35 of the Act of July 5, 1946 (60 Stat. 427, chapter 540; 
15 U.S.C. 1117), is amended by adding at the end the following new 
subsection:
    ``(c) In a case involving the use of a counterfeit mark (as defined 
in section 34(d) (15 U.S.C. 1116(d)) in connection with the sale, 
offering for sale, or distribution of goods or services, the plaintiff 
may elect, at any time before final judgment is rendered by the trial 
court, to recover, instead of actual damages and profits under 
subsection (a), an award of statutory damages for any such use in the 
amount of--
            ``(1) not less than $500 or more than $100,000 per 
        counterfeit mark per type of goods or services sold, offered 
        for sale, or distributed, as the court considers just; or
            ``(2) if the court finds that the use of the counterfeit 
        mark was willful, not more than $1,000,000 per counterfeit mark 
        per type of goods or services sold, offered for sale, or 
        distributed, as the court considers just.''.

SEC. 8. DISPOSITION OF EXCLUDED ARTICLES.

    Section 603(c) of title 17, United States Code, is amended in the 
second sentence by striking ``as the case may be;'' and all that 
follows through the end and inserting ``as the case may be.''.

SEC. 9. DISPOSITION OF MERCHANDISE BEARING AMERICAN TRADEMARK.

    Section 526(e) of the Tariff Act of 1930 (19 U.S.C. 1526(e)) is 
amended--
            (1) in the second sentence, by inserting ``destroy the 
        merchandise. Alternatively, if the merchandise is not unsafe or 
        a hazard to health, and the Secretary has the consent of the 
        trademark owner, the Secretary may'' after ``shall, after 
        forfeiture,'';
            (2) by inserting ``or'' at the end of paragraph (2);
            (3) by striking ``, or'' at the end of paragraph (3) and 
        inserting a period; and
            (4) by striking paragraph (4).

SEC. 10. CIVIL PENALTIES.

    Section 526 of the Tariff Act of 1930 (19 U.S.C. 1526) is amended 
by adding at the end the following new subsection:
    ``(f)(1) Any person who directs, assists financially or otherwise, 
or <DELETED>is in any way concerned in </DELETED>aids and abets the 
importation of merchandise for sale or public distribution that is 
seized under subsection (e) shall be subject to a civil fine.
    ``(2) For the first such seizure, the fine shall be <DELETED>equal 
to </DELETED>not more than the value that the merchandise would have 
had if it were genuine, according to the manufacturer's suggested 
retail price, determined under regulations promulgated by the 
Secretary.
    ``(3) For the second seizure and thereafter, the fine shall be 
<DELETED>equal to </DELETED>not more than twice the value that the 
merchandise would have had if it were genuine, as determined under 
regulations promulgated by the Secretary.
    ``(4) The imposition of a fine under this subsection shall be 
within the discretion of the United States Customs Service, and shall 
be in addition to any other civil or criminal penalty or other remedy 
authorized by law.''.

SEC. 11. PUBLIC DISCLOSURE OF AIRCRAFT MANIFESTS.

    Section 431(c)(1) of the Tariff Act of 1930 (19 U.S.C. 1431(c)(1)) 
is amended--
            (1) in the matter preceding subparagraph (A), by inserting 
        ``vessel or aircraft'' before ``manifest'';
            (2) by amending subparagraph (D) to read as follows:
            ``(D) The name of the vessel, aircraft, or carrier.'';
            (3) by amending subparagraph (E) to read as follows:
            ``(E) The seaport or airport of loading.''; and
            (4) by amending subparagraph (F) to read as follows:
            ``(F) The seaport or airport of discharge.''.

SEC. 12. CUSTOMS ENTRY DOCUMENTATION.

    Section 484(d) of the Tariff Act of 1930 (19 U.S.C. 1484(d)) is 
amended--
            (1) by striking ``Entries'' and inserting ``(1) Entries''; 
        and
            (2) by adding at the end the following new paragraph:
    ``(2) The Secretary, in prescribing regulations governing the 
content of entry documentation, shall require that entry documentation 
contain such information as may be necessary to determine whether the 
imported merchandise bears an infringing trademark in violation of 
section 42 of the Act of July 5, 1946 (60 Stat. 440, chapter 540; 15 
U.S.C. 1124) or any other applicable law, including a trademark 
appearing on the goods or packaging.''.

SEC. 13. UNLAWFUL USE OF VESSELS, VEHICLES, AND AIRCRAFT IN AID OF 
              COMMERCIAL COUNTERFEITING.

    Section 80302(a) of title 49, United States Code, is amended--
            (1) by striking ``or'' at the end of paragraph (4);
            (2) by striking the period at the end of paragraph (5) and 
        inserting ``; or''; and
            (3) by adding at the end the following new paragraph:
            ``(6)(A) A counterfeit label for a phonorecord, computer 
        program or computer program documentation or packaging or copy 
        of a motion picture or other audiovisual work (as defined in 
        section 2318 of title 18);
            ``(B) a phonorecord or copy in violation of section 2319 of 
        title 18; or
            ``(C) any good bearing a counterfeit mark (as defined in 
        section 2320 of title 18).''.

SEC. 14. REGULATIONS.

    Not later than 6 months after the date of enactment of this Act, 
the Secretary of the Treasury shall prescribe such regulations or 
amendments to existing regulations that may be necessary to implement 
and enforce this Act.