Union Calendar No. 270

104TH CONGRESS

2D SESSION H. R. 2511

[Report No. 104–556]

A BILL

To control and prevent commercial counterfeiting,

and for other purposes.

MAY 6, 1996

Committed to the Committee of the Whole House on the

State of the Union and ordered to be printed
IB

Union Calendar No. 270

104TH CONGRESS

2D SESSION H. R. 2511

[Report No. 104–556]

To control and prevent commercial counterfeiting, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 19, 1995

Mr. GOODLATTE (for himself, Mr. HYDE, Mr. CONYERS, Mr. MOORHEAD, Mr.

MCCOLLUM, Mr. FRANK of Massachusetts, Mr. GEKAS, Mr. SMITH of

Texas, Mr. COBLE, Mr. CANADY of Florida, Mr. BONO, Mr. HEINEMAN,

Mr. FLANAGAN, and Mr. DAVIS) introduced the following bill; which was

referred to the Committee on the Judiciary

MAY 6, 1996

Additional sponsor: Mrs. MALONEY

MAY 6, 1996

Committed to the Committee of the Whole House on the State of the Union

and ordered to be printed

A BILL

To control and prevent commercial counterfeiting, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

HR 2511 RH

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Anticounterfeiting

3 Consumer Protection Act of 1995’’.

4 SEC. 2. COUNTERFEITING AS RACKETEERING.

5 Section 1961(1)(B) of title 18, United States Code,

6 is amended by inserting ‘‘, section 2318 (relating to traf7 ficking in counterfeit labels for phonorecords, computer

8 programs or computer program documentation or packag9 ing and copies of motion pictures or other audiovisual

10 works), section 2319 (relating to criminal infringement of

11 a copyright), section 2320 (relating to trafficking in goods

12 or services bearing counterfeit marks)’’ after ‘‘sections

13 2314 and 2315 (relating to interstate transportation of

14 stolen property),’’.

15 SEC. 3. APPLICATION TO COMPUTER PROGRAMS, COM16 PUTER PROGRAM DOCUMENTATION, OR

17 PACKAGING.

18 Section 2318 of title 18, United States Code, is

19 amended—

20 (1) in subsection (a), by inserting ‘‘a computer

21 program or computer program documentation or

22 packaging or’’ after ‘‘copy of’’;

23 (2) in subsection (b)(3), by inserting ‘‘ ‘com24 puter program,’ ’’ after ‘‘ ‘motion picture,’ ’’; and
3

HR 2511 RH

1 (3) in subsection (c)(3), by inserting ‘‘a copy of

2 a computer program or computer program docu3 mentation or packaging,’’ after ‘‘enclose,’’.

4 SEC. 4. TRAFFICKING IN COUNTERFEIT GOODS OR SERV5 ICES.

6 Section 2320 of title 18, United States Code, is

7 amended by adding at the end the following:

8 ‘‘(e) Beginning with the first year after the date of

9 the enactment of this subsection, the Attorney General

10 shall include in the report of the Attorney General to Con11 gress on the business of the Department of Justice pre12 pared pursuant to section 522 of title 28, on a district

13 by district basis, for all actions involving trafficking in

14 counterfeit labels for phonorecords, copies of computer

15 programs or computer program documentation or packag16 ing, copies of motion pictures or other audiovisual works

17 (as defined in section 2318 of title 18), criminal infringe18 ment of copyrights (as defined in section 2319 of title 18),

19 or trafficking in goods or services bearing counterfeit

20 marks (as defined in section 2320 of title 18), an account21 ing of—

22 ‘‘(1) the number of open investigations;

23 ‘‘(2) the number of cases referred by the United

24 States Customs Service;
4

HR 2511 RH

1 ‘‘(3) the number of cases referred by other

2 agencies or sources; and

3 ‘‘(4) the number and outcome, including settle4 ments, sentences, recoveries, and penalties, of all

5 prosecutions brought under sections 2318, 2319,

6 and 2320 to title 18.’’.

7 SEC. 5. SEIZURE OF COUNTERFEIT GOODS.

8 Section 34(d)(9) of the Act of July 5, 1946 (com9 monly known as the Lanham Act) (15 U.S.C. 1116(d)(9))

10 is amended by striking the first sentence and inserting the

11 following: ‘‘A court may order the seizure of an aircraft,

12 vehicle, or vessel used in connection with a violation of

13 this Act. The court shall order that service of a copy of

14 the order under this subsection shall be made by a Federal

15 law enforcement officer (such as a United States marshal

16 or an officer or agent of the United States Customs Serv17 ice, Secret Service, Federal Bureau of Investigation, or the

18 United States Postal Service) or may be made by a State

19 or local law enforcement officer, who, upon making serv20 ice, shall carry out the seizure under the order.’’.
5

HR 2511 RH

1 SEC. 6. DISPOSITION OF MERCHANDISE BEARING COUN2 TERFEIT AMERICAN TRADEMARK AND CIVIL

3 PENALTIES.

4 Title VI of the Act of July 5, 1946 (commonly known

5 as the Lanham Act) (15 U.S.C. 1114 and following) is

6 amended by inserting after section 34 the following:

7 ‘‘SEC. 34A. (a) Any merchandise bearing a counter8 feit mark (as defined in section 45) imported into the

9 United States in violation of section 42 shall be seized by

10 the appropriate Federal official and, in the absence of the

11 written consent of the trademark owner, forfeited. Upon

12 seizure of such merchandise, the appropriate official shall

13 notify the owner of the trademark, and shall, after forfeit14 ure, destroy the merchandise. Alternatively, if the mer15 chandise is not unsafe or a hazard to health, and the offi16 cial has the consent of the trademark owner, the appro17 priate official may obliterate the trademark where feasible

18 and dispose of the goods seized—

19 ‘‘(1) by delivery to such Federal, State, and

20 local government agencies as in the opinion of the

21 appropriate official have a need for such merchan22 dise;

23 ‘‘(2) by gift to such eleemosynary institutions

24 as in the opinion of the appropriate official have a

25 need for such merchandise; or
6

HR 2511 RH

1 ‘‘(3) more than 1 year after the date of forfeit2 ure, by sale by appropriate officials at public auc3 tion, except that before making any such sale the of4 ficial shall determine that no Federal, State, or local

5 government agency or eleemosynary institution has

6 established a need for such merchandise under para7 graph (1) or (2).

8 ‘‘(b)(1) Any person who directs, assists financially or

9 otherwise, or is in any way concerned in the importation

10 of merchandise for sale or public distribution that is seized

11 under subsection (a) shall be subject to a civil fine.

12 ‘‘(2) For the first such seizure, the fine shall be equal

13 to the value that the merchandise would have had if it

14 were genuine, according to the manufacturer’s suggested

15 retail price, as determined under regulations prescribed by

16 the Secretary of the Treasury.

17 ‘‘(3) For the second seizure and thereafter, the fine

18 shall be equal to twice the value that the merchandise

19 would have had if it were genuine, according to the manu20 facturer’s suggested retail price, as determined under reg21 ulations prescribed by the Secretary of the Treasury.

22 ‘‘(4) The imposition of a fine under this subsection

23 shall be within the discretion of the court, and shall be

24 in addition to any other civil or criminal penalty or other

25 remedy authorized by law.’’.
7

HR 2511 RH

1 SEC. 7. RECOVERY FOR VIOLATION OF RIGHTS.

2 Section 35 of the Act of July 5, 1946 (commonly

3 known as the Lanham Act) ( 15 U.S.C. 1117), is amended

4 by adding at the end the following:

5 ‘‘(c) In a case involving the use of a counterfeit mark

6 (as defined in section 34(d)) in connection with the sale,

7 offering for sale, or distribution of goods or services, the

8 plaintiff may elect, at any time before final judgment is

9 rendered by the trial court, to recover, instead of actual

10 damages and profits under subsection (a), an award of

11 statutory damages for any such use in the amount of—

12 ‘‘(1) not less than $500 or more than $100,000

13 per counterfeit mark per type of goods or services

14 sold, offered for sale, or distributed, as the court

15 considers just; or

16 ‘‘(2) if the court finds that the use of the coun17 terfeit mark was willful, not more than $1,000,000

18 per counterfeit mark per type of goods or services

19 sold, offered for sale, or distributed, as the court

20 considers just.’’.

21 SEC. 8. DISPOSITION OF EXCLUDED ARTICLES.

22 Section 603(c) of title 17, United States Code, is

23 amended in the second sentence by striking ‘‘as the case

24 may be;’’ and all that follows through the end and insert25 ing ‘‘as the case may be.’’.
8

HR 2511 RH

1 SEC. 9. RECORDKEEPING REQUIREMENTS.

2 Section 42 of the Act of July 5, 1946 (commonly

3 known as the Lanham Act) ( 15 U.S.C. 1124) is

4 amended—

5 (1) by inserting ‘‘(a)’’ after ‘‘SEC. 42.’’; and

6 (2) by adding at the end the following:

7 ‘‘(b)(1) The owner, registrant, or authorized user of

8 a trademark registered under this Act, and any authorized

9 agent or representative thereof, shall be entitled to obtain

10 from the appropriate Federal officers in a timely manner

11 the following information when contained in a vessel or

12 aircraft manifest:

13 ‘‘(A) The name and address of each importer or

14 consignee and the name and address of the shipper

15 to such importer or consignee, unless the importer

16 or consignee has made a biennial certification, in ac17 cordance with procedures adopted by the Secretary

18 of the Treasury, claiming confidential treatment of

19 such information.

20 ‘‘(B) The general character of the cargo.

21 ‘‘(C) The number of packages and gross weight.

22 ‘‘(D) The name of the vessel or aircraft.

23 ‘‘(E) The port of loading.

24 ‘‘(F) The port of discharge.

25 ‘‘(G) The country of origin of the shipment.
9

HR 2511 RH

1 ‘‘(2) The documentation relating to the entry into the

2 United States of imported merchandise shall contain such

3 information as may be necessary to determine whether the

4 merchandise bears an infringing trademark in violation of

5 subsection (a) or any other applicable law, including a

6 trademark appearing on goods or packaging.’’.