GEC C.S.S.B. 228 75(R)    BILL ANALYSIS


BUSINESS & INDUSTRY
C.S.S.B. 228
By: Armbrister (Hightower)
4-1-97
Committee Report (Substituted)



BACKGROUND 

The counterfeiting of consumer products has increased substantially in
recent years.  The Texas economy is currently losing hundreds of thousands
of dollars in tax revenue and tens of thousands of jobs because of the
manufacture, distribution and sale of counterfeit goods.  For example:
(1)  the computer industry as a whole is losing between $12 billion to $15
billion per year because of counterfeiting, amounting to more than 40
percent of all software industry revenues;  (2)  in some countries, more
than 90 percent of computer software are illegitimate copies; (3) U.S.
automobile manufacturers and suppliers are losing $12 billion a year in
revenue worldwide because of the sale of counterfeit parts; (4) the
Federal Trade Commission estimates the auto industry could hire an
additional 210,000 workers by eliminating the manufacturing and sale of
counterfeit auto parts; and (4) illegal videotaped copies of newly
released films are often available for sale on the street even before the
movies appear in theaters.  
 
Counterfeit products also pose safety hazards.  In 1995 authorities
discovered a counterfeit labeled version of a popular infant formula on
the shelves of a Northern California and in tractor trailers in Kentucky.
The formula was later found in grocery stores in 15 additional states.  In
August 1995, Ohio-based Proctor & Gamble, maker of Head & Shoulder
shampoo, placed a halfpage advertisement in newspapers informing consumers
that counterfeits of its name brand shampoo on store shelves could harm
users with weakened immune systems.  Counterfeit cosmetics often contain
the residue of industrial solvents and carcinogens which may cause severe
allergic reactions when applied to the skin. U.S. toy manufacturers fear
that small children could be harmed either by choking on swallowed parts
from inferior counterfeit toys which have not been safety-tested and which
break easily or which could be coated with toxic paints.   
 
There is a growing link between organized crime and counterfeit products
because counterfeiting products result in enormous profits with little
risk.  The Islamic extremists linked to the World Trade Center bombing in
New York reportedly raised cash by selling counterfeit products.  A
convicted gang leader of the violent Vietnamese gain Born to Kill (BTK)
admitted to earning over $13 million from his counterfeit watch
enterprise.  He is now serving 3 consecutive life sentences for murder.
Hugh Chinese organized crime syndicates, commonly known as Triads, often
turn to counterfeiting as a way to launder drug money.  Their counterfeit
merchandise includes computer software, pharmaceuticals, credit cards,
apparel and accessories.   

Currently, Texas law enforcement and prosecuting officials are hampered in
their efforts to arrest and prosecute counterfeiters because Texas law
does not have a specific criminal statute which adequately addresses the
crime as it has evolved in the last few years.  One of the criminal
statutes currently used the most frequently to prosecute counterfeiting
carries a Class A misdemeanor, a punishment that many offenders consider
as "a cost of doing business  and that local law enforcement  do not
actively enforce because convicted offenders are usually back on the
street and back in business within a short period of time. 

PURPOSE

HB 1613, as proposed, would create a separate section within the Forgery
subchapter of the Penal Code for the crime of counterfeiting and to
strengthen criminal penalties for counterfeiting so as to deter criminal
activity in this area.   

 RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS


SECTION 1 Adds a new section to the Forgery subchapter of the Penal Code.
Defines the following terms:  "counterfeit mark," "intellectual property,"
and "retail value."   Makes it an offense to intentionally manufacture,
use, display, advertise, distribute, offer for sale, sell, or possess with
intent to sell or distribute an item or service that bears or is
identified by a counterfeit mark. Establishes automatic intent to sell or
distribute if a person has more than 25 items that bear a counterfeit
mark.  States that a state or federal certificate of registration of
intellectual property is prima facie evidence of the facts stated in the
certificate.  Establishes that the total retail value of the items or
services is to be used in determining the grade offense. Establishes
grades of penalties, ranging from a Class C misdemeanor to a first degree
felony. 

SECTION 2 Requires that a change in law by this bill applies only to an
offense committed on or after the effective date of the Act.  States that
if any element of the offense occurs before the effective date, then the
offense is said to have been committed before the effective date of the
Act.  
 
SECTION 3 Effective Date: September 1, 1997.

SECTION 4 Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

SECTION 1 The substitute moves the offense of trademark counterfeiting
from the Business and Commerce Code to the Penal Code.  

SECTION 2 Defines "Counterfeit mark" and "Retail value.
  
  On page 3, lines 2 through 8, the substitute changes what an "offense"
is under the Act. 

  On page 3, line 18, and page 4, line 5, the substitute changes the
penalties for an offense under this Act.