[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 32 Engrossed Amendment Senate (EAS)]


  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  

                  In the Senate of the United States,

                                                     February 15, 2006.
    Resolved, That the bill from the House of Representatives (H.R. 32) 
entitled ``An Act to amend title 18, United States Code, to provide 
criminal penalties for trafficking in counterfeit marks.'', do pass 
with the following

                               AMENDMENT:

            Strike out all after the enacting clause and insert:

SECTION 1. TRAFFICKING IN COUNTERFEIT MARKS.

    (a) Short Title; Findings.--
            (1) Short Title.--This section may be cited as the ``Stop 
        Counterfeiting in Manufactured Goods Act''.
            (2) Findings.--The Congress finds that--
                    (A) the United States economy is losing millions of 
                dollars in tax revenue and tens of thousands of jobs 
                because of the manufacture, distribution, and sale of 
                counterfeit goods;
                    (B) the Bureau of Customs and Border Protection 
                estimates that counterfeiting costs the United States 
                $200 billion annually;
                    (C) counterfeit automobile parts, including brake 
                pads, cost the auto industry alone billions of dollars 
                in lost sales each year;
                    (D) counterfeit products have invaded numerous 
                industries, including those producing auto parts, 
                electrical appliances, medicines, tools, toys, office 
                equipment, clothing, and many other products;
                    (E) ties have been established between 
                counterfeiting and terrorist organizations that use the 
                sale of counterfeit goods to raise and launder money;
                    (F) ongoing counterfeiting of manufactured goods 
                poses a widespread threat to public health and safety; 
                and
                    (G) strong domestic criminal remedies against 
                counterfeiting will permit the United States to seek 
                stronger anticounterfeiting provisions in bilateral and 
                international agreements with trading partners.
    (b) Trafficking in Counterfeit Marks.--Section 2320 of title 18, 
United States Code, is amended as follows:
            (1) Subsection (a) is amended by inserting after ``such 
        goods or services'' the following: ``, or intentionally 
        traffics or attempts to traffic in labels, patches, stickers, 
        wrappers, badges, emblems, medallions, charms, boxes, 
        containers, cans, cases, hangtags, documentation, or packaging 
        of any type or nature, knowing that a counterfeit mark has been 
        applied thereto, the use of which is likely to cause confusion, 
        to cause mistake, or to deceive,''.
            (2) Subsection (b) is amended to read as follows:
    ``(b)(1) The following property shall be subject to forfeiture to 
the United States and no property right shall exist in such property:
            ``(A) Any article bearing or consisting of a counterfeit 
        mark used in committing a violation of subsection (a).
            ``(B) Any property used, in any manner or part, to commit 
        or to facilitate the commission of a violation of subsection 
        (a).
    ``(2) The provisions of chapter 46 of this title relating to civil 
forfeitures, including section 983 of this title, shall extend to any 
seizure or civil forfeiture under this section. At the conclusion of 
the forfeiture proceedings, the court, unless otherwise requested by an 
agency of the United States, shall order that any forfeited article 
bearing or consisting of a counterfeit mark be destroyed or otherwise 
disposed of according to law.
    ``(3)(A) The court, in imposing sentence on a person convicted of 
an offense under this section, shall order, in addition to any other 
sentence imposed, that the person forfeit to the United States--
            ``(i) any property constituting or derived from any 
        proceeds the person obtained, directly or indirectly, as the 
        result of the offense;
            ``(ii) any of the person's property used, or intended to be 
        used, in any manner or part, to commit, facilitate, aid, or 
        abet the commission of the offense; and
            ``(iii) any article that bears or consists of a counterfeit 
        mark used in committing the offense.
    ``(B) The forfeiture of property under subparagraph (A), including 
any seizure and disposition of the property and any related judicial or 
administrative proceeding, shall be governed by the procedures set 
forth in section 413 of the Comprehensive Drug Abuse Prevention and 
Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that 
section. Notwithstanding section 413(h) of that Act, at the conclusion 
of the forfeiture proceedings, the court shall order that any forfeited 
article or component of an article bearing or consisting of a 
counterfeit mark be destroyed.
    ``(4) When a person is convicted of an offense under this section, 
the court, pursuant to sections 3556, 3663A, and 3664, shall order the 
person to pay restitution to the owner of the mark and any other victim 
of the offense as an offense against property referred to in section 
3663A(c)(1)(A)(ii).
    ``(5) The term `victim', as used in paragraph (4), has the meaning 
given that term in section 3663A(a)(2).''.
            (3) Subsection (e)(1) is amended--
                    (A) by striking subparagraph (A) and inserting the 
                following:
                    ``(A) a spurious mark--
                            ``(i) that is used in connection with 
                        trafficking in any goods, services, labels, 
                        patches, stickers, wrappers, badges, emblems, 
                        medallions, charms, boxes, containers, cans, 
                        cases, hangtags, documentation, or packaging of 
                        any type or nature;
                            ``(ii) that is identical with, or 
                        substantially indistinguishable from, a mark 
                        registered on the principal register in the 
                        United States Patent and Trademark Office and 
                        in use, whether or not the defendant knew such 
                        mark was so registered;
                            ``(iii) that is applied to or used in 
                        connection with the goods or services for which 
                        the mark is registered with the United States 
                        Patent and Trademark Office, or is applied to 
                        or consists of a label, patch, sticker, 
                        wrapper, badge, emblem, medallion, charm, box, 
                        container, can, case, hangtag, documentation, 
                        or packaging of any type or nature that is 
                        designed, marketed, or otherwise intended to be 
                        used on or in connection with the goods or 
                        services for which the mark is registered in 
                        the United States Patent and Trademark Office; 
                        and
                            ``(iv) the use of which is likely to cause 
                        confusion, to cause mistake, or to deceive; 
                        or''; and
                    (B) by amending the matter following subparagraph 
                (B) to read as follows:
        ``but such term does not include any mark or designation used 
        in connection with goods or services, or a mark or designation 
        applied to labels, patches, stickers, wrappers, badges, 
        emblems, medallions, charms, boxes, containers, cans, cases, 
        hangtags, documentation, or packaging of any type or nature 
        used in connection with such goods or services, of which the 
        manufacturer or producer was, at the time of the manufacture or 
        production in question, authorized to use the mark or 
        designation for the type of goods or services so manufactured 
        or produced, by the holder of the right to use such mark or 
        designation.''.
            (4) Section 2320 is further amended--
                    (A) by redesignating subsection (f) as subsection 
                (g); and
                    (B) by inserting after subsection (e) the 
                following:
    ``(f) Nothing in this section shall entitle the United States to 
bring a criminal cause of action under this section for the repackaging 
of genuine goods or services not intended to deceive or confuse.''.
    (c) Sentencing Guidelines.--
            (1) Review and amendment.--Not later than 180 days after 
        the date of enactment of this Act, the United States Sentencing 
        Commission, pursuant to its authority under section 994 of 
        title 28, United States Code, and in accordance with this 
        subsection, shall review and, if appropriate, amend the Federal 
        sentencing guidelines and policy statements applicable to 
        persons convicted of any offense under section 2318 or 2320 of 
        title 18, United States Code.
            (2) Authorization.--The United States Sentencing Commission 
        may amend the Federal sentencing guidelines in accordance with 
        the procedures set forth in section 21(a) of the Sentencing Act 
        of 1987 (28 U.S.C. 994 note) as though the authority under that 
        section had not expired.
            (3) Responsibilities of united states sentencing 
        commission.--In carrying out this subsection, the United States 
        Sentencing Commission shall determine whether the definition of 
        ``infringement amount'' set forth in application note 2 of 
        section 2B5.3 of the Federal sentencing guidelines is adequate 
        to address situations in which the defendant has been convicted 
        of one of the offenses listed in paragraph (1) and the item in 
        which the defendant trafficked was not an infringing item but 
        rather was intended to facilitate infringement, such as an 
        anti-circumvention device, or the item in which the defendant 
        trafficked was infringing and also was intended to facilitate 
        infringement in another good or service, such as a counterfeit 
        label, documentation, or packaging, taking into account cases 
        such as U.S. v. Sung, 87 F.3d 194 (7th Cir. 1996).

SEC. 2. TRAFFICKING DEFINED.

    (a) Short Title.--This section may be cited as the ``Protecting 
American Goods and Services Act of 2005''.
    (b) Counterfeit Goods or Services.--Section 2320(e) of title 18, 
United States Code, is amended--
            (1) by striking paragraph (2) and inserting the following:
            ``(2) the term `traffic' means to transport, transfer, or 
        otherwise dispose of, to another, for purposes of commercial 
        advantage or private financial gain, or to make, import, 
        export, obtain control of, or possess, with intent to so 
        transport, transfer, or otherwise dispose of;'';
            (2) by redesignating paragraph (3) as paragraph (4); and
            (3) by inserting after paragraph (2) the following:
            ``(3) the term `financial gain' includes the receipt, or 
        expected receipt, of anything of value; and''.
    (c) Conforming Amendments.--
            (1) Sound recordings and music videos of live musical 
        performances.--Section 2319A(e) of title 18, United States 
        Code, is amended by striking paragraph (2) and inserting the 
        following:
            ``(2) the term `traffic' has the same meaning as in section 
        2320(e) of this title.''.
            (2) Counterfeit labels for phonorecords, computer programs, 
        etc.--Section 2318(b) of title 18, United States Code, is 
        amended by striking paragraph (2) and inserting the following:
            ``(2) the term `traffic' has the same meaning as in section 
        2320(e) of this title;''.
            (3) Anti-bootlegging.--Section 1101 of title 17, United 
        States Code, is amended by striking subsection (b) and 
        inserting the following:
    ``(b) Definition.--In this section, the term `traffic' has the same 
meaning as in section 2320(e) of title 18.''.

            Attest:

                                                             Secretary.
109th CONGRESS

  2d Session

                                H. R. 32

_______________________________________________________________________

                               AMENDMENT