CS/HB 1417

1	A bill to be entitled
2	An act relating to counterfeit goods; amending s. 831.03,
3	F.S.; creating and revising definitions; creating s.
4	831.031, F.S.; providing that possession of more than a
5	specified number of counterfeit items, unless
6	satisfactorily explained, allows an inference that such
7	property is possessed with intent to offer it for sale or
8	distribution in certain circumstances; providing that a
9	state or federal certificate of registration of trademark
10	shall be prima facie evidence of the facts stated therein;
11	creating s. 831.032, F.S.; prohibiting specified offenses
12	concerning involving forging or counterfeiting private
13	labels; providing penalties; providing for
14	reclassification of specified offenses; providing for
15	fines based on the retail value of goods in certain
16	circumstances; providing for restitution; providing
17	applicability of certain defenses and limitations on
18	remedies to prosecutions under the section; creating s.
19	831.033, F.S.; providing for destruction or forfeiture of
20	goods to which the forged or counterfeit trademarks or
21	service marks were attached; providing for forfeiture of
22	property constituting or derived from any proceeds of a
23	counterfeiting offense; permitting alternative disposure
24	of forfeited items bearing or consisting of a counterfeit
25	trademark with the written consent of the trademark
26	owners; providing for the costs of such alternative
27	disposition; creating s. 831.034, F.S.; providing that
28	prosecution under specified provisions does not preclude
29	the applicability of any other provision of the law that
30	applies or may in the future apply to any transaction
31	which violates specified provisions, unless such provision
32	is inconsistent with the terms of those provisions;
33	repealing s. 831.05, F.S., relating to vending goods or
34	services with counterfeit trademarks or service marks;
35	providing an effective date.
36
37	Be It Enacted by the Legislature of the State of Florida:
38
39	Section 1.  Section 831.03, Florida Statutes, is amended,
40	to read:
41	(Substantial rewording of section. See
42	s. 831.03, F.S., for present text.)
43	831.03  Forging or counterfeiting private labels;
44	definitions.--As used in ss. 831.03-831.034, the term:
45	(1)  "Bodily injury" means:
46	(a)  A cut, abrasion, bruise, burn, or disfigurement;
47	(b)  Physical pain;
48	(c)  Illness;
49	(d)  Impairment of the function of a bodily member, organ,
50	or mental faculty; or
51	(e)  Any other injury to the body, no matter how temporary.
52	(2)  "Culpable negligence" means reckless disregard of
53	human life or safety and consciously doing an act or following a
54	course of conduct that the actor knew, or reasonably should have
55	known, was likely to cause bodily injury.
56	(3)  "Forged or counterfeit trademark or service mark"
57	refers to a mark:
58	(a)  That is applied to or used in connection with any
59	goods, services, labels, patches, stickers, wrappers, badges,
60	emblems, medallions, charms, boxes, containers, cans, cases,
61	hangtags, documentation, or packaging or any other components of
62	any type or nature that are designed, marketed, or otherwise
63	intended to be used on or in connection with any goods or
64	services;
65	(b)  That is identical with or an imitation of a mark
66	registered for those goods or services on the principal register
67	in the United States Patent and Trademark Office or the
68	trademark register for the State of Florida or any other state,
69	or protected by the Amateur Sports Act of 1978, 36 U.S.C. s.
70	380, whether or not the offender knew such mark was so
71	registered or protected;
72	(c)  The use of which is unauthorized by the owner of the
73	registered mark; and
74	(d)  The application or use of which is either likely to
75	cause confusion, to cause mistake, or to deceive or is otherwise
76	intended to be used on or in connection with the goods or
77	services for which the mark is registered.
78
79	An otherwise legitimate mark is deemed counterfeit for purposes
80	of this definition if, by altering the nature of any item to
81	which it is affixed, the altered item bearing the otherwise
82	legitimate mark is likely, in the course of commerce, to cause
83	confusion, to cause mistake, or to deceive.
84	(4)  "Retail value" means:
85	(a)  The counterfeiter's regular selling price for the
86	goods or services, unless the goods or services bearing a
87	counterfeit mark would appear to a reasonably prudent person to
88	be authentic, then the retail value shall be the price of the
89	authentic counterpart; or, if no authentic reasonably similar
90	counterpart exists, then the retail value shall remain the
91	counterfeiter's regular selling price.
92	(b)  In the case of labels, patches, stickers, wrappers,
93	badges, emblems, medallions, charms, boxes, containers, cans,
94	cases, hangtags, documentation, or packaging or any other
95	components of any type or nature that are designed, marketed, or
96	otherwise intended to be used on or in connection with any goods
97	or services, the retail value shall be treated as if each
98	component was a finished good and valued as described in
99	paragraph (a).
100	(5)  "Serious bodily injury" means bodily injury that
101	involves:
102	(a)  A substantial risk of death;
103	(b)  Extreme physical pain;
104	(c)  Protracted and obvious disfigurement; or
105	(d)  Protracted loss or impairment of the function of a
106	bodily member, organ, or mental faculty.
107	Section 2.  Section 831.031, Florida Statutes, is created
108	to read:
109	831.031  Evidence.--In any proceeding under or related to
110	ss. 831.03-831.034:
111	(1)  Proof that a person is in possession of more than 25
112	goods, labels, patches, stickers, wrappers, badges, emblems,
113	medallions, charms, boxes, containers, cans, cases, hangtags,
114	documentation, or packaging or any other components of any type
115	or nature bearing a counterfeit mark, unless satisfactorily
116	explained, gives rise to an inference that such property is
117	being possessed with intent to offer it for sale or
118	distribution.
119	(2)  A state or federal certificate of registration of
120	trademark shall be prima facie evidence of the facts stated
121	therein.
122	Section 3.  Section 831.032, Florida Statutes, is created
123	to read:
124	831.032  Offenses involving forging or counterfeiting
125	private labels.--
126	(1)  Whoever, knowingly and willfully, forges or
127	counterfeits, or causes or procures to be forged or
128	counterfeited, manufactures, distributes or transports, or
129	possesses with intent to distribute or transport, upon or in
130	connection with any goods or services, the trademark or service
131	mark of any person, entity, or association, which goods or
132	services are intended for resale, or knowingly possesses tools
133	or other reproduction materials for reproduction of specific
134	forged or counterfeit trademarks or service marks commits the
135	crime of counterfeiting.
136	(2)  Whoever knowingly sells or offers for sale, or
137	knowingly purchases and keeps or has in his or her possession,
138	with intent that the same shall be sold or disposed, or vends
139	any goods having thereon a forged or counterfeit trademark, or
140	who knowingly sells or offers for sale any service which is sold
141	in conjunction with a forged or counterfeit service mark, of any
142	person, entity, or association, knowing the same to be forged or
143	counterfeited, commits the crime of selling or offering for sale
144	counterfeit goods or services.
145	(3)(a)  Violation of subsection (1) or subsection (2) is a
146	misdemeanor of the first degree, punishable as provided in s.
147	775.082 or s. 775.083, except that:
148	1.  A violation of subsection (1) or subsection (2) is a
149	felony of the third degree, punishable as provided in s.
150	775.082, s. 775.083, or s. 775.084, if the offense involves 100
151	or more but less than 1,000 items bearing one or more
152	counterfeit marks or if the goods involved in the offense have a
153	total retail value of more than $ 2,500, but less than $20,000.
154	2.  A violation of subsection (1) or subsection (2) is a
155	felony of the second degree, punishable as provided in s.
156	775.082, s. 775.083, or s. 775.084, if the offense involves
157	1,000 or more items bearing one or more counterfeit marks or if
158	the goods involved in the offense have a total retail value of
159	$20,000 or more.
160	3.  A violation of subsection (1) or subsection (2) is a
161	felony of the third degree, punishable as provided in s.
162	775.082, s. 775.083, or s. 775.084 if, during the commission or
163	as a result of the commission of the offense, the person
164	engaging in the offense knowingly or by culpable negligence
165	causes or allows to be caused bodily injury to another.
166	4.  A violation of subsection (1) or subsection (2) is a
167	felony of the second degree, punishable as provided in s.
168	775.082, s. 775.083, or s. 775.084 if, during the commission or
169	as a result of the commission of the offense, the person
170	engaging in the offense knowingly or by culpable negligence
171	causes or allows to be caused serious bodily injury to another.
172	5.  A violation of subsection (1) or subsection (2) is a
173	felony of the first degree, punishable as provided in s.
174	775.082, s. 775.083, or s. 775.084 if, during the commission or
175	as a result of the commission of the offense, the person
176	engaging in the offense knowingly or by culpable negligence
177	causes or allows to be caused death to another.
178	(b)  For any person who, having previously been convicted
179	for an offense under this section, is subsequently convicted for
180	another offense under this section, such subsequent offense
181	shall be reclassified as follows:
182	1.  In the case of a felony of the second degree, to a
183	felony of the first degree.
184	2.  In the case of a felony of the third degree, to a
185	felony of the second degree.
186	3.  In the case of a misdemeanor of the first degree, to a
187	felony of the third degree. For purposes of sentencing under
188	chapter 921 and determining incentive gain-time eligibility
189	under chapter 944, such offense is ranked in level 4 of the
190	offense severity ranking chart.
191
192	For purposes of sentencing under chapter 921 and determining
193	incentive gain-time eligibility under chapter 944, a felony
194	offense that is reclassified under this paragraph is ranked one
195	level above the ranking under s. 921.0022 or s. 921.0023 of the
196	felony offense committed.
197	(c)  In lieu of a fine otherwise authorized by law, when
198	any person has been convicted of an offense under this section,
199	the court may fine the person up to three times the retail value
200	of the goods seized, manufactured, or sold, whichever is
201	greater, and may enter orders awarding court costs and the costs
202	of investigation and prosecution, reasonably incurred. The court
203	shall hold a hearing to determine the amount of the fine
204	authorized by this paragraph.
205	(d)  When a person is convicted of an offense under this
206	section, the court, pursuant to s. 775.089, shall order the
207	person to pay restitution to the trademark owner and any other
208	victim of the offense. In determining the value of the property
209	loss to the trademark owner, the court shall include expenses
210	incurred by the trademark owner in the investigation or
211	prosecution of the offense as well as the disgorgement of any
212	profits realized by a person convicted of the offense.
213	(4)  All defenses, affirmative defenses, and limitations on
214	remedies that would be applicable in an action under the Lanham
215	Act, 15 U.S.C. ss. 1051 et seq., or to an action under s.
216	495.131 shall be applicable in a prosecution under this section.
217	Section 4.  Section 831.033, Florida Statutes, is created
218	to read:
219	831.033  Forging or counterfeiting private labels;
220	destruction; forfeiture.--
221	(1)(a)  Any goods to which forged or counterfeit trademarks
222	or service marks are attached or affixed or any tools or other
223	materials for the reproduction of any specific forged or
224	counterfeit trademark or service mark which are produced or
225	possessed in violation of this section may be seized by any law
226	enforcement officer.
227	(b)  Any personal property, including, but not limited to,
228	any item, object, tool, machine, or vehicle of any kind,
229	employed as an instrumentality in the commission of, or in
230	aiding or abetting in the commission of, the crime of
231	counterfeiting, as proscribed by ss. 831.03-831.034, and not
232	otherwise included in paragraph (a), may be seized and is
233	subject to forfeiture pursuant to ss. 932.701-932.704.
234	(2)  The court, in imposing sentence on a person convicted
235	of an offense under this section, shall order, in addition to
236	any other sentence imposed, that the person forfeit to the state
237	the following:
238	(a)  Any property constituting or derived from any proceeds
239	the person obtained, directly or indirectly, as the result of
240	the offense.
241	(b)  Any of the person's property used, or intended to be
242	used, in any manner or part, to commit, facilitate, aid, or abet
243	the commission of the offense.
244	(c)  Any item that bears or consists of a counterfeit mark
245	used in committing the offense.
246	(3)  At the conclusion of all forfeiture proceedings, the
247	court shall order that any forfeited item bearing or consisting
248	of a counterfeit mark be destroyed or alternatively disposed of
249	in another manner with the written consent of the trademark
250	owners. The owners of the registered or protected mark shall be
251	responsible for the costs incurred in the disposition of the
252	forged or counterfeit items.
253	Section 5.  Section 831.034, Florida Statutes, is created
254	to read:
255	831.034  Prosecutions.--Notwithstanding any other provision
256	of the law, prosecution may be had for any and all violations of
257	ss. 831.03-831.033 and for any other criminal violations that
258	may apply. Prosecution for violation of any of the offenses
259	described in ss. 831.03-831.033 shall not be construed to
260	preclude the applicability of any other provision of the law
261	which presently applies or may in the future apply to any
262	transaction that violates ss. 831.03-831.033, unless such
263	provision is inconsistent with the terms of ss. 831.03-831.033.
264	Section 6.  Section 831.05, Florida Statutes, is repealed.
265	Section 7.  This act shall take effect October 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.