1.
(a)
This Act may be cited as the Stop Counterfeiting in Manufactured Goods Act
.
(b)
The Congress finds that—
(1)
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;
(2)
the Bureau of Customs and Border Protection estimates that counterfeiting costs the United States
$200 billion annually;
(3)
counterfeit automobile parts, including brake pads, cost the auto industry alone billions of
dollars in lost sales each year;
(4)
counterfeit products have invaded numerous industries, including those producing auto parts,
electrical appliances, medicines, tools, toys, office equipment, clothing,
and many other products;
(5)
ties have been established between counterfeiting and terrorist organizations that use the sale of
counterfeit goods to raise and launder money;
(6)
ongoing counterfeiting of manufactured goods poses a widespread threat to public health and safety;
and
(7)
strong domestic criminal remedies against counterfeiting will permit the United States to seek
stronger anticounterfeiting provisions in bilateral and international
agreements with trading partners.
2.
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.
.
3.
(a)
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 section, 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.
(b)
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.
(c)
Responsibilities of united states sentencing commission
In carrying out this section, 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 subsection (a) 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).
November 3, 2005
Reported with an amendment