[Congressional Record Volume 141, Number 198 (Wednesday, December 13, 1995)]
[Senate]
[Pages S18580-S18582]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               ANTICOUNTERFEITING CONSUMER PROTECTION ACT

  Mr. BROWN. Madam President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 250, S. 1136.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 1136) to control and prevent commercial 
     counterfeiting, and for other purposes.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the 
bill. which had been reported from the Committee on the Judiciary, with 
amendments; as follows:

  (The parts of the bill intended to be stricken are shown in boldface 
brackets and the part of the bill intended to be inserted are shown in 
italic.)

                                S. 1136

       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 [is in any way concerned in] 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 [equal 
     to] 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 [equal to] 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 

[[Page S18581]]
     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.

  Mr. BROWN. Madam President, I ask unanimous consent that the 
committee amendments be agreed to, the bill be deemed read a third 
time, passed, the motion to reconsider be laid upon the table, and that 
any statements relating to the bill be placed at the appropriate place 
in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the committee amendments were agreed to.
  The bill (S. 1136), as amended, was deemed read for the third time, 
and passed, as follows:

                                S. 1136

       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 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 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 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:
     
[[Page S18582]]

       ``(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.
  Mr. BROWN. The distinguished Senator from Kentucky has been so 
cooperative, I wonder if he might agree to the balanced budget by 
unanimous consent at this time.
  Mr. FORD. Madam President, there is always euphoria at times around 
here, and we usually have to put the needle into the balloon, and I 
will just do that now. [Laughter.]
  Mr. BROWN. I had hoped the Senator, for the sake of the Christmas 
spirit, might be willing to go along.
  Mr. FORD. The Senator from Kentucky has a lot of spirit, Senator.
  Mr. BROWN. I know. But you charge for that.
  Mr. FORD. That is right--for you, double. [Laughter.]
  Mr. BROWN. We will want to assure the Senator that we will give him 
another chance.
  Mr. FORD. I always look forward to another chance. At 72, I have had 
second chances for a long time.
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