[Congressional Record Volume 142, Number 88 (Friday, June 14, 1996)]
[Senate]
[Pages S6302-S6303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           ANTICOUNTERFEITING CONSUMER PROTECTION ACT OF 1995

  Mr. MACK. Mr. President, I ask unanimous consent that the Chair lay 
before the Senate a message from the House to accompany S. 1136.
  The PRESIDING OFFICER laid before the Senate the following message 
from the House of Representatives:

       Resolved, That the bill from the Senate (S. 1136) entitled 
     ``An Act to control and prevent commercial counterfeiting, 
     and for other purposes'', do pass with the following 
     amendment:

       Strike out all after the enacting clause, and insert:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Anticounterfeiting Consumer 
     Protection Act of 1996''.

     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 United States 
     consumers;
       (4) eliminates United States 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 2319A (relating to unauthorized fixation 
     of and trafficking in sound recordings and music videos of 
     live musical performances), 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.

       (a) In General.--Section 2318 of title 18, United States 
     Code, is amended--
       (1) in subsection (a), by striking ``a motion picture or 
     other audiovisual work,'' and inserting ``a computer program 
     or documentation or packaging for a computer program, or a 
     copy of a motion picture or other audiovisual work, and 
     whoever, in any of the circumstances described in subsection 
     (c) of this section, knowingly traffics in counterfeit 
     documentation or packaging for a computer program,'';
       (2) in subsection (b)(3) by inserting `` `computer 
     program', '' after `` `motion picture', ''; and
       (3) in subsection (c)--
       (A) by striking ``or'' at the end of paragraph (2);
       (B) in paragraph (3)--
       (i) by inserting ``a copy of a copyrighted computer program 
     or copyrighted documentation or packaging for a computer 
     program,'' after ``enclose,''; and
       (ii) by striking the period at the end and inserting ``; 
     or''; and
       (C) by adding after paragraph (3) the following:
       ``(4) the counterfeited documentation or packaging for a 
     computer program is copyrighted.''.
       (b) Conforming Amendments.--(1) The section caption for 
     section 2318 of title 18, United States Code, is amended to 
     read as follows:

     ``Sec. 2318. Trafficking in counterfeit labels for 
       phonorecords, copies of computer programs or computer 
       program documentation or packaging, and copies of motion 
       pictures or other audio visual works, and trafficking in 
       counterfeit computer program documentation or packaging''.

       (2) The item relating to section 2318 in the table of 
     sections for chapter 113 of such title is amended to read as 
     follows:

``2318. Trafficking in counterfeit labels for phonorecords, copies of 
              computer programs or computer program documentation or 
              packaging, and copies of motion pictures or other audio 
              visual works, and trafficking in counterfeit computer 
              program documentation or packaging.''.

     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:
       ``(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, an accounting, on a district by 
     district basis, of the following with respect to all actions 
     taken by the Department of Justice that involve 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), 
     unauthorized fixation of and trafficking in sound recordings 
     and music videos of live musical performances (as defined in 
     section 2319A of title 18), or trafficking in goods or 
     services bearing counterfeit marks (as defined in section 
     2320 of title 18):
       ``(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.
       ``(4) The number and outcome, including settlements, 
     sentences, recoveries, and penalties, of all prosecutions 
     brought under sections 2318, 2319, 2319A, 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 connection with the 
     sale, offering for sale, or distribution of goods or services 
     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) Civil Penalties.--(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 Customs Service, and shall be 
     in addition to any other civil or criminal penalty or other 
     remedy authorized by law.''.

[[Page S6303]]

     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.'';
       (4) by amending subparagraph (F) to read as follows:
       ``(F) The seaport or airport of discharge.''; and
       (5) by adding after subparagraph (G) the following new 
     subparagraph:
       ``(H) The trademarks appearing on the goods or packages.''.

     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 (commonly referred to as the `Trademark Act of 
     1946'; 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, copy of a 
     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;
       ``(C) a fixation of a sound recording or music video of a 
     live musical performance in violation of section 2319A of 
     title 18; or
       ``(D) 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 the enactment of 
     this Act, the Secretary of the Treasury shall prescribe such 
     regulations or amendments to existing regulations that may be 
     necessary to carry out the amendments made by sections 9, 10, 
     11, 12, and 13 of this Act.

  Mr. MACK. Mr. President, I ask unanimous consent that the Senate 
concur in the amendment of the House.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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