[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 32 Enrolled Bill (ENR)]
H.R.32
One Hundred Ninth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the third day of January, two thousand and six
An Act
To amend title 18, United States Code, to provide criminal penalties for
trafficking in counterfeit marks.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
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.''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.