[109th Congress Public Law 181]
[From the U.S. Government Printing Office]
[DOCID: f:publ181.109]
[[Page 120 STAT. 285]]
Public Law 109-181
109th Congress
An Act
To amend title 18, United States Code, to provide criminal penalties for
trafficking in counterfeit marks. <<NOTE: Mar. 16, 2006 - [H.R. 32]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. TRAFFICKING IN COUNTERFEIT <<NOTE: Stop Counterfeiting in
Manufactured Goods Act. 18 USC 1 note.>> MARKS.
(a) Short Title; Findings.--
(1) Short title.--This section may be cited as the ``Stop
Counterfeiting in Manufactured Goods Act''.
(2) <<NOTE: 18 USC 2320 note.>> 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:
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``(b)(1) <<NOTE: Courts.>> 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;
[[Page 120 STAT. 287]]
``(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) <<NOTE: 28 USC 994 note.>> Sentencing Guidelines.--
(1) Review and amendment.--Not <<NOTE: Deadline.>> 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
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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 <<NOTE: Protecting American Goods and Services Act
of 2005. 18 USC 1 note.>> 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.''.
Approved March 16, 2006.
LEGISLATIVE HISTORY--H.R. 32 (S. 1699):
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HOUSE REPORTS: No. 109-68 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
Vol. 151 (2005):
May 23, considered and passed House.
Vol. 152 (2006):
Feb. 15, considered and passed
Senate, amended.
Mar. 7, House concurred in Senate
amendment.
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