Florida Senate - 2008 CS for SB 2374
By the Committee on Commerce; and Senator Diaz de la Portilla
577-06938-08 20082374c1
1
A bill to be entitled
2
An act relating to counterfeit goods; amending s. 831.03,
3
F.S.; providing 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
is prima facie evidence of the facts stated therein;
11
creating s. 831.032, F.S.; prohibiting specified offenses
12
involving forging or counterfeiting private labels;
13
providing penalties; providing for reclassification of
14
specified offenses; providing for fines based on the
15
retail value of goods in certain circumstances; providing
16
for restitution; providing applicability of certain
17
defenses and limitations on remedies to prosecutions
18
involving counterfeiting; creating s. 831.033, F.S.;
19
providing for destruction or forfeiture of goods to which
20
the forged or counterfeit trademarks or service marks were
21
attached; providing for forfeiture of property
22
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 which
30
applies or may in the future apply to any transaction that
31
violates specified provisions, unless such provision is
32
inconsistent with the terms of those provisions; repealing
33
s. 831.05, F.S., relating to vending goods or services
34
having counterfeit trademarks or service marks; providing
35
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 to
40
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 human
53
life or safety and consciously doing an act or following a course
54
of conduct that the actor knew, or reasonably should have known,
55
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, 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 to 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 trademark
68
register for the State of Florida or any other state, or
69
protected by the Amateur Sports Act of 1978, 36 U.S.C. s. 380,
70
whether or not the offender knew such mark was so registered or
71
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 likely to cause
75
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 goods
86
or services, unless, if the goods or services bearing a
87
counterfeit mark would appear to a reasonably prudent person to
88
be authentic, the retail value is the price of the authentic
89
counterpart; or, if no authentic reasonably similar counterpart
90
exists, the retail value remains the counterfeiter's regular
91
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 which 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 to
108
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 being
117
possessed with intent to offer it for sale or distribution.
118
(2) A state or federal certificate of registration of
119
trademark is prima facie evidence of the facts stated therein.
120
Section 3. Section 831.032, Florida Statutes, is created to
121
read:
122
831.032 Offenses involving forging or counterfeiting
123
private labels.--
124
(1) Any person who knowingly and willfully forges or
125
counterfeits, or causes or procures to be forged or
126
counterfeited, manufactures, distributes, or transports, or
127
possesses with intent to distribute or transport, upon or in
128
connection with any goods or services, the trademark or service
129
mark of any person, entity, or association, which goods or
130
services are intended for resale, or who knowingly possesses
131
tools or other reproduction materials for the reproduction of
132
specific forged or counterfeit trademarks or service marks
133
commits the crime of counterfeiting.
134
(2) Any person who knowingly sells or offers for sale, or
135
knowingly purchases and keeps or has in his or her possession,
136
with intent that the same shall be sold or disposed; who vends
137
any goods having thereon a forged or counterfeit trademark; or
138
who knowingly sells or offers for sale any service that is sold
139
in conjunction with a forged or counterfeit service mark of any
140
person, entity, or association, knowing the same to be forged or
141
counterfeited, commits the crime of selling or offering for sale
142
counterfeit goods or services.
143
(3)(a) Violation of subsection (1) or subsection (2) is a
144
misdemeanor of the first degree, punishable as provided in s.
146
1. A violation of subsection (1) or subsection (2) is a
147
felony of the third degree, punishable as provided in s. 775.082,
149
but fewer than 1,000 items bearing one or more counterfeit marks,
150
or if the goods involved in the offense have a total retail value
151
of more than $ 2,500 but less than $20,000.
152
2. A violation of subsection (1) or subsection (2) is a
153
felony of the second degree, punishable as provided in s.
155
or more items bearing one or more counterfeit marks or if the
156
goods involved in the offense have a total retail value of
157
$20,000 or more.
158
3. A violation of subsection (1) or subsection (2) is a
159
felony of the third degree, punishable as provided in s. 775.082,
161
result of the commission of the offense, the person engaging in
162
the offense knowingly or by culpable negligence causes or allows
163
to be caused bodily injury to another.
164
4. A violation of subsection (1) or subsection (2) is a
165
felony of the second degree, punishable as provided in s.
167
as a result of the commission of the offense, the person engaging
168
in the offense knowingly or by culpable negligence causes or
169
allows to be caused serious bodily injury to another.
170
5. A violation of subsection (1) or subsection (2) is a
171
felony of the first degree, punishable as provided in s. 775.082,
173
result of the commission of the offense, the person engaging in
174
the offense knowingly or by culpable negligence causes or allows
175
to be caused death to another commits a felony of the first
177
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 shall
181
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 felony
185
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, such offense is ranked in level 4 of the offense
189
severity ranking chart.
190
191
For purposes of sentencing under chapter 921, a felony offense
192
that is reclassified under this paragraph is ranked one level
194
offense committed.
195
(c) In lieu of a fine otherwise authorized by law, if any
196
person is convicted of an offense under this section, the court
197
may fine the person up to three times the retail value of the
198
goods seized, manufactured, or sold, whichever is greater, and
199
may enter orders awarding court costs and the costs of
200
investigation and prosecution, reasonably incurred. The court
201
shall hold a hearing to determine the amount of the fine
202
authorized by this paragraph.
203
(d) If a person is convicted of an offense under this
204
section, the court, pursuant to s. 775.089, shall order the
205
person to pay restitution to the trademark owner and any other
206
victim of the offense. In determining the value of the property
207
loss to the trademark owner, the court shall include expenses
208
incurred by the trademark owner in the investigation or
209
prosecution of the offense as well as the disgorgement of any
210
profits realized by a person convicted of the offense.
211
(4) All defenses, affirmative defenses, and limitations on
212
remedies which would apply in an action under the Lanham Act, 15
213
U.S.C. ss. 1051 et seq., or to an action under s. 495.131, apply
214
in a prosecution under this section.
215
Section 4. Section 831.033, Florida Statutes, is created to
216
read:
217
831.033 Forging or counterfeiting private labels;
218
destruction; forfeiture.--
219
(1)(a) Any goods to which forged or counterfeit trademarks
220
or service marks are attached or affixed or any tools or other
221
materials for the reproduction of any specific forged or
222
counterfeit trademark or service mark which are produced or
223
possessed in violation of this section may be seized by any law
224
enforcement officer.
225
(b) Any personal property, including, but not limited to,
226
any item, object, tool, machine, or vehicle of any kind, employed
227
as an instrumentality in the commission of, or in aiding or
228
abetting in the commission of, the crime of counterfeiting, as
229
proscribed by ss. 831.03-831.034, and not otherwise included in
230
paragraph (a), may be seized and is subject to forfeiture
232
(2) The court, in imposing sentence on a person convicted
233
of an offense under this section, shall order, in addition to any
234
other sentence imposed, that the person forfeit to the state:
235
(a) Any property constituting or derived from any proceeds
236
the person obtained, directly or indirectly, as the result of the
237
offense.
238
(b) Any of the person's property used, or intended to be
239
used, in any manner or part, to commit, facilitate, aid, or abet
240
the commission of the offense.
241
(c) Any item that bears or consists of a counterfeit mark
242
used in committing the offense.
243
(3) At the conclusion of all forfeiture proceedings, the
244
court shall order that any forfeited item bearing or consisting
245
of a counterfeit mark be destroyed or alternatively disposed of
246
in another manner with the written consent of the trademark
247
owners. The owners of the registered or protected mark shall be
248
responsible for the costs incurred in the disposition of the
249
forged or counterfeit items.
250
Section 5. Section 831.034, Florida Statutes, is created to
251
read:
252
831.034 Prosecutions.--Notwithstanding any other provision
253
of the law, prosecution may be had for any violations of ss.
254
831.03-831.033 and for any other criminal violations that may
255
apply. Prosecution for violation of any of the offenses described
256
in ss. 831.03-831.033 does not preclude the applicability of any
257
other provision of the law which presently applies or may in the
258
future apply to any transaction that violates ss. 831.03-831.033,
259
unless such provision is inconsistent with the terms of ss.
260
831.03-831.033.
261
Section 6. Section 831.05, Florida Statutes, is repealed.
262
Section 7. This act shall take effect October 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.