Text: S.1136 — 104th Congress (1995-1996)All Information (Except Text)

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Public Law No: 104-153 (07/02/1996)

 
[104th Congress Public Law 153]
[From the U.S. Government Printing Office]


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[DOCID: f:publ153.104]


[[Page 1385]]

           ANTICOUNTERFEITING CONSUMER PROTECTION ACT OF 1996

[[Page 110 STAT. 1386]]

Public Law 104-153
104th Congress

                                 An Act


 
    To control and prevent commercial counterfeiting, and for other 
             purposes. <<NOTE: July 2, 1996 -  [S. 1136]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress 
assembled, <<NOTE: Anticounterfeiting Consumer Protection Act of 
1996. Law enforcement and crime.>> 

SECTION 1. <<NOTE: 18 USC 2311 note.>>  SHORT TITLE.

    This Act may be cited as the ``Anticounterfeiting Consumer 
Protection Act of 1996''.

SEC. 2. <<NOTE: 18 USC 2311 note.>>  FINDINGS.

    The counterfeiting of trademarked and copyrighted merchandise--
            (1) has been connected with organized crime;
            (2) deprives legitimate trademark and copyright owners of 
        substantial revenues and consumer goodwill;
            (3) poses health and safety threats to United States 
        consumers;
            (4) eliminates United States jobs; and
            (5) is a multibillion-dollar drain on the United States 
        economy.

SEC. 3. COUNTERFEITING AS RACKETEERING.

    Section 1961(1)(B) of title 18, United States Code, is amended by 
inserting ``, section 2318 (relating to trafficking in counterfeit 
labels for phonorecords, computer programs or computer program 
documentation or packaging and copies of motion pictures or other 
audiovisual works), section 2319 (relating to criminal infringement of a 
copyright), section 2319A (relating to unauthorized fixation of and 
trafficking in sound recordings and music videos of live musical 
performances), section 2320 (relating to trafficking in goods or 
services bearing counterfeit marks)'' after ``sections 2314 and 2315 
(relating to interstate transportation of stolen property)''.
SEC. 4. APPLICATION TO COMPUTER PROGRAMS, COMPUTER PROGRAM 
                    DOCUMENTATION, OR PACKAGING.

    (a) In General.--Section 2318 of title 18, United States Code, is 
amended--
            (1) in subsection (a), by striking ``a motion picture or 
        other audiovisual work,'' and inserting ``a computer program or 
        documentation or packaging for a computer program, or a copy of 
        a motion picture or other audiovisual work, and whoever, in any 
        of the circumstances described in subsection (c) of this 
        section, knowingly traffics in counterfeit documentation or 
        packaging for a computer program,'';

[[Page 110 STAT. 1387]]

            (2) in subsection (b)(3) by inserting `` `computer program', 
        '' after `` `motion picture', ''; and
            (3) in subsection (c)--
                    (A) by striking ``or'' at the end of paragraph (2);
                    (B) in paragraph (3)--
                          (i) by inserting ``a copy of a copyrighted 
                      computer program or copyrighted documentation or 
                      packaging for a computer program,'' after 
                      ``enclose,''; and
                          (ii) by striking the period at the end and 
                      inserting ``; or''; and
                    (C) by adding after paragraph (3) the following:
            ``(4) the counterfeited documentation or packaging for a 
        computer program is copyrighted.''.

    (b) Conforming Amendments.--(1) The section caption for section 2318 
of title 18, United States Code, is amended to read as follows:

``Sec. 2318. Trafficking in counterfeit labels for phonorecords, copies 
                        of computer programs or computer program 
                        documentation or packaging, and copies of motion 
                        pictures or other audio visual works, and 
                        trafficking in counterfeit computer program 
                        documentation or packaging''.

    (2) The item relating to section 2318 in the table of sections for 
chapter 113 of such title is amended to read as follows:

``2318. Trafficking in counterfeit labels for phonorecords, copies of 
           computer programs or computer program documentation or 
           packaging, and copies of motion pictures or other audio 
           visual works, and trafficking in counterfeit computer program 
           documentation or packaging.''.

SEC. 5. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.

    Section 2320 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(e) <<NOTE: Reports.>>  Beginning with the first year after the 
date of enactment of this subsection, the Attorney General shall include 
in the report of the Attorney General to Congress on the business of the 
Department of Justice prepared pursuant to section 522 of title 28, an 
accounting, on a district by district basis, of the following with 
respect to all actions taken by the Department of Justice that involve 
trafficking in counterfeit labels for phonorecords, copies of computer 
programs or computer program documentation or packaging, copies of 
motion pictures or other audiovisual works (as defined in section 2318 
of title 18), criminal infringement of copyrights (as defined in section 
2319 of title 18), unauthorized fixation of and trafficking in sound 
recordings and music videos of live musical performances (as defined in 
section 2319A of title 18), or trafficking in goods or services bearing 
counterfeit marks (as defined in section 2320 of title 18):
            ``(1) The number of open investigations.
            ``(2) The number of cases referred by the United States 
        Customs Service.
            ``(3) The number of cases referred by other agencies or 
        sources.
            ``(4) The number and outcome, including settlements, 
        sentences, recoveries, and penalties, of all prosecutions 
        brought under sections 2318, 2319, 2319A, and 2320 of title 
        18.''.

[[Page 110 STAT. 1388]]

SEC. 6. SEIZURE OF COUNTERFEIT GOODS.

    Section 34(d)(9) of the Act of July 5, 1946 (60 Stat. 427, chapter 
540; 15 U.S.C. 1116(d)(9)), is amended by striking the first sentence 
and inserting the following: <<NOTE: Courts.>>  ``The court shall order 
that service of a copy of the order under this subsection shall be made 
by a Federal law enforcement officer (such as a United States marshal or 
an officer or agent of the United States Customs Service, Secret 
Service, Federal Bureau of Investigation, or Post Office) or may be made 
by a State or local law enforcement officer, who, upon making service, 
shall carry out the seizure under the order.''.

SEC. 7. RECOVERY FOR VIOLATION OF RIGHTS.

    Section 35 of the Act of July 5, 1946 (60 Stat. 427, chapter 540; 15 
U.S.C. 1117), is amended by adding at the end the following new 
subsection:
    ``(c) In a case involving the use of a counterfeit mark (as defined 
in section 34(d) (15 U.S.C. 1116(d)) in connection with the sale, 
offering for sale, or distribution of goods or services, the plaintiff 
may elect, at any time before final judgment is rendered by the trial 
court, to recover, instead of actual damages and profits under 
subsection (a), an award of statutory damages for any such use in 
connection with the sale, offering for sale, or distribution of goods or 
services in the amount of--
            ``(1) not less than $500 or more than $100,000 per 
        counterfeit mark per type of goods or services sold, offered for 
        sale, or distributed, as the court considers just; or
            ``(2) if the court finds that the use of the counterfeit 
        mark was willful, not more than $1,000,000 per counterfeit mark 
        per type of goods or services sold, offered for sale, or 
        distributed, as the court considers just.''.

SEC. 8. DISPOSITION OF EXCLUDED ARTICLES.

    Section 603(c) of title 17, United States Code, is amended in the 
second sentence by striking ``as the case may be;'' and all that follows 
through the end and inserting ``as the case may be.''.
SEC. 9. DISPOSITION OF MERCHANDISE BEARING AMERICAN TRADEMARK.

    Section 526(e) of the Tariff Act of 1930 (19 U.S.C. 1526(e)) is 
amended--
            (1) in the second sentence, by inserting ``destroy the 
        merchandise. Alternatively, if the merchandise is not unsafe or 
        a hazard to health, and the Secretary has the consent of the 
        trademark owner, the Secretary may'' after ``shall, after 
        forfeiture,'';
            (2) by inserting ``or'' at the end of paragraph (2);
            (3) by striking ``, or'' at the end of paragraph (3) and 
        inserting a period; and
            (4) by striking paragraph (4).

SEC. 10. CIVIL PENALTIES.

    Section 526 of the Tariff Act of 1930 (19 U.S.C. 1526) is amended by 
adding at the end the following new subsection:
    ``(f) Civil Penalties.--(1) Any person who directs, assists 
financially or otherwise, or aids and abets the importation of 
merchandise for sale or public distribution that is seized under 
subsection (e) shall be subject to a civil fine.

[[Page 110 STAT. 1389]]

    ``(2) For the first such seizure, the fine shall be not more than 
the value that the merchandise would have had if it were genuine, 
according to the manufacturer's suggested retail price, determined under 
regulations promulgated by the Secretary.
    ``(3) For the second seizure and thereafter, the fine shall be not 
more than twice the value that the merchandise would have had if it were 
genuine, as determined under regulations promulgated by the Secretary.
    ``(4) The imposition of a fine under this subsection shall be within 
the discretion of the Customs Service, and shall be in addition to any 
other civil or criminal penalty or other remedy authorized by law.''.

SEC. 11. PUBLIC DISCLOSURE OF AIRCRAFT MANIFESTS.

    Section 431(c)(1) of the Tariff Act of 1930 (19 U.S.C. 1431(c)(1)) 
is amended--
            (1) in the matter preceding subparagraph (A), by inserting 
        ``vessel or aircraft'' before ``manifest'';
            (2) by amending subparagraph (D) to read as follows:
            ``(D) The name of the vessel, aircraft, or carrier.'';
            (3) by amending subparagraph (E) to read as follows:
            ``(E) The seaport or airport of loading.'';
            (4) by amending subparagraph (F) to read as follows:
            ``(F) The seaport or airport of discharge.''; and
            (5) by adding after subparagraph (G) the following new 
        subparagraph:
            ``(H) The trademarks appearing on the goods or packages.''.

SEC. 12. CUSTOMS ENTRY DOCUMENTATION.

    Section 484(d) of the Tariff Act of 1930 (19 U.S.C. 1484(d)) is 
amended--
            (1) by striking ``Entries'' and inserting ``(1) Entries''; 
        and
            (2) by adding at the end the following new paragraph:

    ``(2) The Secretary, in prescribing regulations governing the 
content of entry documentation, shall require that entry documentation 
contain such information as may be necessary to determine whether the 
imported merchandise bears an infringing trademark in violation of 
section 42 of the Act of July 5, 1946 (commonly referred to as the 
`Trademark Act of 1946'; 15 U.S.C. 1124), or any other applicable law, 
including a trademark appearing on the goods or packaging.''.
SEC. 13. UNLAWFUL USE OF VESSELS, VEHICLES, AND AIRCRAFT IN AID OF 
                      COMMERCIAL COUNTERFEITING.

    Section 80302(a) of title 49, United States Code, is amended--
            (1) by striking ``or'' at the end of paragraph (4);
            (2) by striking the period at the end of paragraph (5) and 
        inserting ``; or''; and
            (3) by adding at the end the following new paragraph:
            ``(6)(A) a counterfeit label for a phonorecord, copy of a 
        computer program or computer program documentation or packaging, 
        or copy of a motion picture or other audiovisual work (as 
        defined in section 2318 of title 18);
            ``(B) a phonorecord or copy in violation of section 2319 of 
        title 18;
            ``(C) a fixation of a sound recording or music video of a 
        live musical performance in violation of section 2319A of title 
        18; or

[[Page 110 STAT. 1390]]

            ``(D) any good bearing a counterfeit mark (as defined in 
        section 2320 of title 18).''.

SEC. 14. <<NOTE: 19 USC 1431 note.>>  REGULATIONS.

    Not later than 6 months after the date of the enactment of this Act, 
the Secretary of the Treasury shall prescribe such regulations or 
amendments to existing regulations that may be necessary to carry out 
the amendments made by sections 9, 10, 11, 12, and 13 of this Act.

    Approved July 2, 1996.

LEGISLATIVE HISTORY--S. 1136 (H.R. 2511):
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HOUSE REPORTS: No. 104-556 accompanying H.R. 2511 (Comm. on the 
Judiciary).
SENATE REPORTS: No. 104-177 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
                                                        Vol. 141 (1995):
                                    Dec. 13, considered and passed 
                                        Senate.
                                                        Vol. 142 (1996):
                                    June 4, H.R. 2511 considered and 
                                        passed House; S. 1136, amended, 
                                        passed in lieu.
                                    June 14, Senate concurred in House 
                                        amendment.

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