1

The Committee on Commerce (Diaz de la Portilla) recommended the

2

following amendment:

3

4

     Senate Amendment (with title amendment)

5

     Delete everything after the enacting clause

6

and insert:

7

     Section 1.  Section 831.03, Florida Statutes, is amended to

8

read:

9

(Substantial rewording of section. See

10

s. 831.03, F.S., for present text.)

11

     831.03 Forging or counterfeiting private labels;

12

definitions.--As used in ss. 831.03-831.034, the term:

13

     (1) "Bodily injury" means:

14

     (a) A cut, abrasion, bruise, burn, or disfigurement;

15

     (b) Physical pain;

16

     (c) Illness;

17

     (d) Impairment of the function of a bodily member, organ,

18

or mental faculty; or

19

     (e) Any other injury to the body, no matter how temporary.

20

     (2) "Culpable negligence" means reckless disregard of human

21

life or safety and consciously doing an act or following a course

22

of conduct that the actor knew, or reasonably should have known,

23

was likely to cause bodily injury.

24

     (3) "Forged or counterfeit trademark or service mark"

25

refers to a mark:

26

     (a) That is applied to or used in connection with any

27

goods, services, labels, patches, stickers, wrappers, badges,

28

emblems, medallions, charms, boxes, containers, cans, cases,

29

hangtags, documentation, packaging, or any other components of

30

any type or nature that are designed, marketed, or otherwise

31

intended to be used on or in connection with any goods or

32

services;

33

     (b) That is identical to or an imitation of a mark

34

registered for those goods or services on the principal register

35

in the United States Patent and Trademark Office or the trademark

36

register for the State of Florida or any other state, or

37

protected by the Amateur Sports Act of 1978, 36 U.S.C. s. 380,

38

whether or not the offender knew such mark was so registered or

39

protected;

40

     (c) The use of which is unauthorized by the owner of the

41

registered mark; and

42

     (d) The application or use of which is likely to cause

43

confusion, to cause mistake, or to deceive or is otherwise

44

intended to be used on or in connection with the goods or

45

services for which the mark is registered.

46

47

An otherwise legitimate mark is deemed counterfeit for purposes

48

of this definition if, by altering the nature of any item to

49

which it is affixed, the altered item bearing the otherwise

50

legitimate mark is likely, in the course of commerce, to cause

51

confusion, to cause mistake, or to deceive.

52

     (4) "Retail value" means:

53

     (a) The counterfeiter's regular selling price for the goods

54

or services, unless, if the goods or services bearing a

55

counterfeit mark would appear to a reasonably prudent person to

56

be authentic, the retail value is the price of the authentic

57

counterpart; or, if no authentic reasonably similar counterpart

58

exists, the retail value remains the counterfeiter's regular

59

selling price.

60

     (b) In the case of labels, patches, stickers, wrappers,

61

badges, emblems, medallions, charms, boxes, containers, cans,

62

cases, hangtags, documentation, or packaging or any other

63

components of any type or nature which are designed, marketed, or

64

otherwise intended to be used on or in connection with any goods

65

or services, the retail value shall be treated as if each

66

component was a finished good and valued as described in

67

paragraph (a).

68

     (5) "Serious bodily injury" means bodily injury that

69

involves:

70

     (a) A substantial risk of death;

71

     (b) Extreme physical pain;

72

     (c) Protracted and obvious disfigurement; or

73

     (d) Protracted loss or impairment of the function of a

74

bodily member, organ, or mental faculty.

75

     Section 2.  Section 831.031, Florida Statutes, is created to

76

read:

77

     831.031 Evidence.--In any proceeding under or related to

78

ss. 831.03-831.034:

79

     (1) Proof that a person is in possession of more than 25

80

goods, labels, patches, stickers, wrappers, badges, emblems,

81

medallions, charms, boxes, containers, cans, cases, hangtags,

82

documentation, or packaging or any other components of any type

83

or nature bearing a counterfeit mark, unless satisfactorily

84

explained, gives rise to an inference that such property is being

85

possessed with intent to offer it for sale or distribution.

86

     (2) A state or federal certificate of registration of

87

trademark is prima facie evidence of the facts stated therein.

88

     Section 3.  Section 831.032, Florida Statutes, is created to

89

read:

90

     831.032 Offenses involving forging or counterfeiting

91

private labels.--

92

     (1) Any person who knowingly and willfully forges or

93

counterfeits, or causes or procures to be forged or

94

counterfeited, manufactures, distributes, or transports, or

95

possesses with intent to distribute or transport, upon or in

96

connection with any goods or services, the trademark or service

97

mark of any person, entity, or association, which goods or

98

services are intended for resale, or who knowingly possesses

99

tools or other reproduction materials for the reproduction of

100

specific forged or counterfeit trademarks or service marks

101

commits the crime of counterfeiting.

102

     (2) Any person who knowingly sells or offers for sale, or

103

knowingly purchases and keeps or has in his or her possession,

104

with intent that the same shall be sold or disposed; who vends

105

any goods having thereon a forged or counterfeit trademark; or

106

who knowingly sells or offers for sale any service that is sold

107

in conjunction with a forged or counterfeit service mark of any

108

person, entity, or association, knowing the same to be forged or

109

counterfeited, commits the crime of selling or offering for sale

110

counterfeit goods or services.

111

     (3)(a) Violation of subsection (1) or subsection (2) is a

112

misdemeanor of the first degree, punishable as provided in s.

113

775.082 or s. 775.083, except that:

114

     1. A violation of subsection (1) or subsection (2) is a

115

felony of the third degree, punishable as provided in s. 775.082,

116

s. 775.083, or s. 775.084, if the offense involves 100 or more

117

but fewer than 1,000 items bearing one or more counterfeit marks,

118

or if the goods involved in the offense have a total retail value

119

of more than $ 2,500 but less than $20,000.

120

     2. A violation of subsection (1) or subsection (2) is a

121

felony of the second degree, punishable as provided in s.

122

775.082, s. 775.083, or s. 775.084, if the offense involves 1,000

123

or more items bearing one or more counterfeit marks or if the

124

goods involved in the offense have a total retail value of

125

$20,000 or more.

126

     3. A violation of subsection (1) or subsection (2) is a

127

felony of the third degree, punishable as provided in s. 775.082,

128

s. 775.083, or s. 775.084 if, during the commission or as a

129

result of the commission of the offense, the person engaging in

130

the offense knowingly or by culpable negligence causes or allows

131

to be caused bodily injury to another.

132

     4. A violation of subsection (1) or subsection (2) is a

133

felony of the second degree, punishable as provided in s.

134

775.082, s. 775.083, or s. 775.084 if, during the commission or

135

as a result of the commission of the offense, the person engaging

136

in the offense knowingly or by culpable negligence causes or

137

allows to be caused serious bodily injury to another.

138

     5. A violation of subsection (1) or subsection (2) is a

139

felony of the first degree, punishable as provided in s. 775.082,

140

s. 775.083, or s. 775.084 if, during the commission or as a

141

result of the commission of the offense, the person engaging in

142

the offense knowingly or by culpable negligence causes or allows

143

to be caused death to another commits a felony of the first

144

degree, punishable as provided in s. 775.082, s. 775.083, or s.

145

775.084.

146

     (b) For any person who, having previously been convicted

147

for an offense under this section, is subsequently convicted for

148

another offense under this section, such subsequent offense shall

149

be reclassified as follows:

150

     1. In the case of a felony of the second degree, to a

151

felony of the first degree.

152

     2. In the case of a felony of the third degree, to a felony

153

of the second degree.

154

     3. In the case of a misdemeanor of the first degree, to a

155

felony of the third degree. For purposes of sentencing under

156

chapter 921, such offense is ranked in level 4 of the offense

157

severity ranking chart.

158

159

For purposes of sentencing under chapter 921, a felony offense

160

that is reclassified under this paragraph is ranked one level

161

above the ranking under s. 921.0022 or s. 921.0023 of the felony

162

offense committed.

163

     (c) In lieu of a fine otherwise authorized by law, if any

164

person is convicted of an offense under this section, the court

165

may fine the person up to three times the retail value of the

166

goods seized, manufactured, or sold, whichever is greater, and

167

may enter orders awarding court costs and the costs of

168

investigation and prosecution, reasonably incurred. The court

169

shall hold a hearing to determine the amount of the fine

170

authorized by this paragraph.

171

     (d) If a person is convicted of an offense under this

172

section, the court, pursuant to s. 775.089, shall order the

173

person to pay restitution to the trademark owner and any other

174

victim of the offense. In determining the value of the property

175

loss to the trademark owner, the court shall include expenses

176

incurred by the trademark owner in the investigation or

177

prosecution of the offense as well as the disgorgement of any

178

profits realized by a person convicted of the offense.

179

     (4) All defenses, affirmative defenses, and limitations on

180

remedies which would apply in an action under the Lanham Act, 15

181

U.S.C. ss. 1051 et seq., or to an action under s. 495.131, apply

182

in a prosecution under this section.

183

     Section 4.  Section 831.033, Florida Statutes, is created to

184

read:

185

     831.033 Forging or counterfeiting private labels;

186

destruction; forfeiture.--

187

     (1)(a) Any goods to which forged or counterfeit trademarks

188

or service marks are attached or affixed or any tools or other

189

materials for the reproduction of any specific forged or

190

counterfeit trademark or service mark which are produced or

191

possessed in violation of this section may be seized by any law

192

enforcement officer.

193

     (b) Any personal property, including, but not limited to,

194

any item, object, tool, machine, or vehicle of any kind, employed

195

as an instrumentality in the commission of, or in aiding or

196

abetting in the commission of, the crime of counterfeiting, as

197

proscribed by ss. 831.03-831.034, and not otherwise included in

198

paragraph (a), may be seized and is subject to forfeiture

199

pursuant to ss. 932.701-932.704.

200

     (2) The court, in imposing sentence on a person convicted

201

of an offense under this section, shall order, in addition to any

202

other sentence imposed, that the person forfeit to the state:

203

     (a) Any property constituting or derived from any proceeds

204

the person obtained, directly or indirectly, as the result of the

205

offense.

206

     (b) Any of the person's property used, or intended to be

207

used, in any manner or part, to commit, facilitate, aid, or abet

208

the commission of the offense.

209

     (c) Any item that bears or consists of a counterfeit mark

210

used in committing the offense.

211

     (3) At the conclusion of all forfeiture proceedings, the

212

court shall order that any forfeited item bearing or consisting

213

of a counterfeit mark be destroyed or alternatively disposed of

214

in another manner with the written consent of the trademark

215

owners. The owners of the registered or protected mark shall be

216

responsible for the costs incurred in the disposition of the

217

forged or counterfeit items.

218

     Section 5.  Section 831.034, Florida Statutes, is created to

219

read:

220

     831.034 Prosecutions.--Notwithstanding any other provision

221

of the law, prosecution may be had for any violations of ss.

222

831.03-831.033 and for any other criminal violations that may

223

apply. Prosecution for violation of any of the offenses described

224

in ss. 831.03-831.033 does not preclude the applicability of any

225

other provision of the law which presently applies or may in the

226

future apply to any transaction that violates ss. 831.03-831.033,

227

unless such provision is inconsistent with the terms of ss.

228

831.03-831.033.

229

     Section 6. Section 831.05, Florida Statutes, is repealed.

230

     Section 7.  This act shall take effect October 1, 2008.

231

232

================ T I T L E  A M E N D M E N T ================

233

And the title is amended as follows:

234

     Delete everything before the enacting clause

235

and insert:

236

A bill to be entitled

237

An act relating to counterfeit goods; amending s. 831.03,

238

F.S.; creating and revising definitions; creating s.

239

831.031, F.S.; providing that possession of more than a

240

specified number of counterfeit items, unless

241

satisfactorily explained, allows an inference that such

242

property is possessed with intent to offer it for sale or

243

distribution in certain circumstances; providing that a

244

state or federal certificate of registration of trademark

245

is prima facie evidence of the facts stated therein;

246

creating s. 831.032, F.S.; prohibiting specified offenses

247

involving forging or counterfeiting private labels;

248

providing penalties; providing for reclassification of

249

specified offenses; providing for fines based on the

250

retail value of goods in certain circumstances; providing

251

for restitution; providing applicability of certain

252

defenses and limitations on remedies to prosecutions

253

involving counterfeiting; creating s. 831.033, F.S.;

254

providing for destruction or forfeiture of goods to which

255

the forged or counterfeit trademarks or service marks were

256

attached; providing for forfeiture of property

257

constituting or derived from any proceeds of a

258

counterfeiting offense; permitting alternative disposure

259

of forfeited items bearing or consisting of a counterfeit

260

trademark with the written consent of the trademark

261

owners; providing for the costs of such alternative

262

disposition; creating s. 831.034, F.S.; providing that

263

prosecution under specified provisions does not preclude

264

the applicability of any other provision of the law which

265

applies or may in the future apply to any transaction that

266

violates specified provisions, unless such provision is

267

inconsistent with the terms of those provisions; repealing

268

s. 831.05, F.S., relating to vending goods or services

269

having counterfeit trademarks or service marks; providing

270

an effective date.

3/28/2008  6:24:00 PM     36-05994-08