I

104TH CONGRESS

1ST SESSION H. R. 2511

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

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,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Anticounterfeiting

5 Consumer Protection Act of 1995’’.

6 SEC. 2. COUNTERFEITING AS RACKETEERING.

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

8 is amended by inserting ‘‘, section 2318 (relating to traf9 ficking in counterfeit labels for phonorecords, computer
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1 programs or computer program documentation or packag2 ing and copies of motion pictures or other audiovisual

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

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

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

6 2314 and 2315 (relating to interstate transportation of

7 stolen property),’’.

8 SEC. 3. APPLICATION TO COMPUTER PROGRAMS, COM9 PUTER PROGRAM DOCUMENTATION, OR

10 PACKAGING.

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

12 amended—

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

14 program or computer program documentation or

15 packaging or’’ after ‘‘copy of’’;

16 (2) in subsection (b)(3), by inserting ‘‘ ‘com17 puter program,’ ’’ after ‘‘ ‘motion picture,’ ’’; and

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

19 a computer program or computer program docu20 mentation or packaging,’’ after ‘‘enclose,’’.

21 SEC. 4. TRAFFICKING IN COUNTERFEIT GOODS OR SERV22 ICES.

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

24 amended by adding at the end the following:
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1 ‘‘(e) Beginning with the first year after the date of

2 the enactment of this subsection, the Attorney General

3 shall include in the report of the Attorney General to Con4 gress on the business of the Department of Justice pre5 pared pursuant to section 522 of title 28, on a district

6 by district basis, for all actions involving trafficking in

7 counterfeit labels for phonorecords, copies of computer

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

10 (as defined in section 2318 of title 18), criminal infringe11 ment of copyrights (as defined in section 2319 of title 18),

12 or trafficking in goods or services bearing counterfeit

13 marks (as defined in section 2320 of title 18), an account14 ing of—

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

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

17 States Customs Service;

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

19 agencies or sources; and

20 ‘‘(4) the number and outcome, including settle21 ments, sentences, recoveries, and penalties, of all

22 prosecutions brought under sections 2318, 2319,

23 and 2320 to title 18.’’.
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1 SEC. 5. SEIZURE OF COUNTERFEIT GOODS.

2 Section 34(d)(9) of the Act of July 5, 1946 (com3 monly known as the Lanham Act) (15 U.S.C. 1116(d)(9))

4 is amended by striking the first sentence and inserting the

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

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

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

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

9 law enforcement officer (such as a United States marshal

10 or an officer or agent of the United States Customs Serv11 ice, Secret Service, Federal Bureau of Investigation, or the

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

13 or local law enforcement officer, who, upon making serv14 ice, shall carry out the seizure under the order.’’.

15 SEC. 6. DISPOSITION OF MERCHANDISE BEARING COUN16 TERFEIT AMERICAN TRADEMARK AND CIVIL

17 PENALTIES.

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

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

20 amended by inserting after section 34 the following:

21 ‘‘SEC. 34A. (a) Any merchandise bearing a counter22 feit mark (as defined in section 45) imported into the

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

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

25 written consent of the trademark owner, forfeited. Upon

26 seizure of such merchandise, the appropriate official shall
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1 notify the owner of the trademark, and shall, after forfeit2 ure, destroy the merchandise. Alternatively, if the mer3 chandise is not unsafe or a hazard to health, and the offi4 cial has the consent of the trademark owner, the appro5 priate official may obliterate the trademark where feasible

6 and dispose of the goods seized—

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

8 local government agencies as in the opinion of the

9 appropriate official have a need for such merchan10 dise;

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

12 as in the opinion of the appropriate official have a

13 need for such merchandise; or

14 ‘‘(3) more than 1 year after the date of forfeit15 ure, by sale by appropriate officials at public auc16 tion, except that before making any such sale the of17 ficial shall determine that no Federal, State, or local

18 government agency or eleemosynary institution has

19 established a need for such merchandise under para20 graph (1) or (2).

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

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

23 of merchandise for sale or public distribution that is seized

24 under subsection (a) shall be subject to a civil fine.
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1 ‘‘(2) For the first such seizure, the fine shall be equal

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

3 were genuine, according to the manufacturer’s suggested

4 retail price, as determined under regulations prescribed by

5 the Secretary of the Treasury.

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

7 shall be equal to twice the value that the merchandise

8 would have had if it were genuine, according to the manu9 facturer’s suggested retail price, as determined under reg10 ulations prescribed by the Secretary of the Treasury.

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

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

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

14 remedy authorized by law.’’.

15 SEC. 7. RECOVERY FOR VIOLATION OF RIGHTS.

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

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

18 by adding at the end the following:

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

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

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

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

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

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

25 statutory damages for any such use in the amount of—
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1 ‘‘(1) not less than $500 or more than $100,000

2 per counterfeit mark per type of goods or services

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

4 considers just; or

5 ‘‘(2) if the court finds that the use of the coun6 terfeit mark was willful, not more than $1,000,000

7 per counterfeit mark per type of goods or services

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

9 considers just.’’.

10 SEC. 8. DISPOSITION OF EXCLUDED ARTICLES.

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

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

13 may be;’’ and all that follows through the end and insert14 ing ‘‘as the case may be.’’.

15 SEC. 9. RECORDKEEPING REQUIREMENTS.

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

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

18 amended—

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

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

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

22 a trademark registered under this Act, and any authorized

23 agent or representative thereof, shall be entitled to obtain

24 from the appropriate Federal officers in a timely manner
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1 the following information when contained in a vessel or

2 aircraft manifest:

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

4 consignee and the name and address of the shipper

5 to such importer or consignee, unless the importer

6 or consignee has made a biennial certification, in ac7 cordance with procedures adopted by the Secretary

8 of the Treasury, claiming confidential treatment of

9 such information.

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

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

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

13 ‘‘(E) The port of loading.

14 ‘‘(F) The port of discharge.

15 ‘‘(G) The country of origin of the shipment.

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

17 United States of imported merchandise shall contain such

18 information as may be necessary to determine whether the

19 merchandise bears an infringing trademark in violation of

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

21 trademark appearing on goods or packaging.’’.

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