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‘‘but such term does not include any mark or designa-
tion used in connection with goods or services, or a
mark or designation applied to labels, patches, stick-
ers, wrappers, badges, emblems, medallions, charms,
boxes, containers, cans, cases, hangtags, documenta-
tion, or packaging of any type or nature used in con-
nection with such goods or services, of which the man-
ufacturer or producer was, at the time of the manu-
facture or production in question, authorized to use
the mark or designation for the type of goods or serv-
ices 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 sub-
section (g); and
(B) by inserting after subsection (e) the fol-
lowing:
‘‘(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 in-
tended 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
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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 applica-
ble to persons convicted of any offense under section
2318 or 2320 of title 18, United States Code.
(2) AUTHORIZATION.—The United States Sen-
tencing Commission may amend the Federal sen-
tencing 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 SEN-
TENCING
COMMISSION.—In carrying out this sub-
section, the United States Sentencing Commission
shall determine whether the definition of ‘‘infringe-
ment amount’’ set forth in application note 2 of sec-
tion 2B5.3 of the Federal sentencing guidelines is ade-
quate 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 defend-
ant trafficked was infringing and also was intended
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to facilitate infringement in another good or service,
such as a counterfeit label, documentation, or pack-
aging, 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, trans-
fer, 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 dis-
pose of;’’;
(2) by redesignating paragraph (3) as para-
graph (4); and
(3) by inserting after paragraph (2) the fol-
lowing:
‘‘(3) the term ‘financial gain’ includes the re-
ceipt, or expected receipt, of anything of value; and’’.
(c) CONFORMING AMENDMENTS.—
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(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 para-
graph (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 sub-
section (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.’’.
Attest:
Secretary.