Florida Senate - 2008 CS for SB 2374

By the Committee on Commerce; and Senator Diaz de la Portilla

577-06938-08 20082374c1

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A bill to be entitled

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

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

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

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specified number of counterfeit items, unless

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satisfactorily explained, allows an inference that such

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property is possessed with intent to offer it for sale or

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distribution in certain circumstances; providing that a

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state or federal certificate of registration of trademark

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is prima facie evidence of the facts stated therein;

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

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involving forging or counterfeiting private labels;

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providing penalties; providing for reclassification of

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specified offenses; providing for fines based on the

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retail value of goods in certain circumstances; providing

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for restitution; providing applicability of certain

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defenses and limitations on remedies to prosecutions

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

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providing for destruction or forfeiture of goods to which

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the forged or counterfeit trademarks or service marks were

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attached; providing for forfeiture of property

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constituting or derived from any proceeds of a

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counterfeiting offense; permitting alternative disposure

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of forfeited items bearing or consisting of a counterfeit

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trademark with the written consent of the trademark

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owners; providing for the costs of such alternative

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

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prosecution under specified provisions does not preclude

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the applicability of any other provision of the law which

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applies or may in the future apply to any transaction that

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violates specified provisions, unless such provision is

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inconsistent with the terms of those provisions; repealing

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

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having counterfeit trademarks or service marks; providing

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an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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

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read:

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(Substantial rewording of section. See

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

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     831.03 Forging or counterfeiting private labels;

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

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     (1) "Bodily injury" means:

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

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     (b) Physical pain;

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     (c) Illness;

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

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or mental faculty; or

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

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

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

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

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was likely to cause bodily injury.

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

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refers to a mark:

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

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

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

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hangtags, documentation, packaging, or any other components of

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

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

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services;

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

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registered for those goods or services on the principal register

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in the United States Patent and Trademark Office or the trademark

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

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

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

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protected;

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

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registered mark; and

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

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

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

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services for which the mark is registered.

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An otherwise legitimate mark is deemed counterfeit for purposes

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

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which it is affixed, the altered item bearing the otherwise

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

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confusion, to cause mistake, or to deceive.

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     (4) "Retail value" means:

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

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

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counterfeit mark would appear to a reasonably prudent person to

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

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counterpart; or, if no authentic reasonably similar counterpart

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exists, the retail value remains the counterfeiter's regular

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selling price.

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

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

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cases, hangtags, documentation, or packaging or any other

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

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

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

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component was a finished good and valued as described in

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paragraph (a).

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

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involves:

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     (a) A substantial risk of death;

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     (b) Extreme physical pain;

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     (c) Protracted and obvious disfigurement; or

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

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bodily member, organ, or mental faculty.

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

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read:

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

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ss. 831.03-831.034:

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

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

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

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documentation, or packaging or any other components of any type

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or nature bearing a counterfeit mark, unless satisfactorily

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

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possessed with intent to offer it for sale or distribution.

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     (2) A state or federal certificate of registration of

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trademark is prima facie evidence of the facts stated therein.

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

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read:

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     831.032 Offenses involving forging or counterfeiting

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private labels.--

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     (1) Any person who knowingly and willfully forges or

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counterfeits, or causes or procures to be forged or

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counterfeited, manufactures, distributes, or transports, or

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possesses with intent to distribute or transport, upon or in

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connection with any goods or services, the trademark or service

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

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services are intended for resale, or who knowingly possesses

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tools or other reproduction materials for the reproduction of

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specific forged or counterfeit trademarks or service marks

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commits the crime of counterfeiting.

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

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

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

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any goods having thereon a forged or counterfeit trademark; or

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

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in conjunction with a forged or counterfeit service mark of any

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

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counterfeited, commits the crime of selling or offering for sale

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counterfeit goods or services.

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

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

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775.082 or s. 775.083, except that:

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

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

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

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

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

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

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

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

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

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

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goods involved in the offense have a total retail value of

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$20,000 or more.

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

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

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

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

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the offense knowingly or by culpable negligence causes or allows

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to be caused bodily injury to another.

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

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

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

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

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in the offense knowingly or by culpable negligence causes or

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allows to be caused serious bodily injury to another.

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

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

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

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

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the offense knowingly or by culpable negligence causes or allows

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

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

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775.084.

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

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for an offense under this section, is subsequently convicted for

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another offense under this section, such subsequent offense shall

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be reclassified as follows:

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

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felony of the first degree.

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

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of the second degree.

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

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felony of the third degree. For purposes of sentencing under

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

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severity ranking chart.

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For purposes of sentencing under chapter 921, a felony offense

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that is reclassified under this paragraph is ranked one level

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

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offense committed.

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

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

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

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

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may enter orders awarding court costs and the costs of

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investigation and prosecution, reasonably incurred. The court

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shall hold a hearing to determine the amount of the fine

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authorized by this paragraph.

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

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

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person to pay restitution to the trademark owner and any other

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

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loss to the trademark owner, the court shall include expenses

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incurred by the trademark owner in the investigation or

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prosecution of the offense as well as the disgorgement of any

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profits realized by a person convicted of the offense.

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

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

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

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in a prosecution under this section.

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

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read:

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     831.033 Forging or counterfeiting private labels;

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destruction; forfeiture.--

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

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

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materials for the reproduction of any specific forged or

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counterfeit trademark or service mark which are produced or

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

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enforcement officer.

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

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

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

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

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

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

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pursuant to ss. 932.701-932.704.

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

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

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

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     (a) Any property constituting or derived from any proceeds

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

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offense.

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

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

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the commission of the offense.

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

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used in committing the offense.

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

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court shall order that any forfeited item bearing or consisting

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of a counterfeit mark be destroyed or alternatively disposed of

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in another manner with the written consent of the trademark

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

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responsible for the costs incurred in the disposition of the

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forged or counterfeit items.

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

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read:

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     831.034 Prosecutions.--Notwithstanding any other provision

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

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831.03-831.033 and for any other criminal violations that may

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apply. Prosecution for violation of any of the offenses described

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

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

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

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unless such provision is inconsistent with the terms of ss.

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831.03-831.033.

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

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

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