By: Armbrister S.B. No. 228
A BILL TO BE ENTITLED
AN ACT
1-1 relating to certain counterfeit trademarks, service marks, or
1-2 identification marks in connection with the sale or manufacture of
1-3 goods and services; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. (a) The legislature finds and declares that:
1-6 (1) the residents of this state have a right to
1-7 receive those goods and services the residents reasonably believe
1-8 they are purchasing or for which the residents contract; and
1-9 (2) the manufacture and sale of counterfeit goods,
1-10 including auto and aircraft parts, and the offer of services
1-11 through counterfeit service marks pose a serious threat to the
1-12 health and safety of the residents of this state and result in
1-13 economic disruption to the legitimate businesses located in this
1-14 state.
1-15 (b) To protect the residents and businesses of this state,
1-16 the legislature finds it necessary to take appropriate action
1-17 through this Act to:
1-18 (1) remove counterfeit goods, including parts, from
1-19 the channels of commerce; and
1-20 (2) prevent the manufacture, sale, and distribution of
1-21 counterfeit goods or the offer of counterfeit services through
1-22 counterfeit service marks.
1-23 (c) For the purposes stated in this section, the legislature
2-1 finds it necessary to include forfeiture of property provisions in
2-2 this Act.
2-3 SECTION 2. Title 2, Business & Commerce Code, is amended by
2-4 adding Chapter 20 to read as follows:
2-5 CHAPTER 20. COUNTERFEIT TRADEMARKS, SERVICE MARKS,
2-6 AND IDENTIFICATION MARKS
2-7 Sec. 20.01. DEFINITIONS. In this chapter:
2-8 (1) "Identification mark" means a data plate, serial
2-9 number, or part identification number.
2-10 (2) "Protected mark" means a trademark or service mark
2-11 or an identification mark that is:
2-12 (A) registered with the secretary of state;
2-13 (B) registered on the principal register of the
2-14 United States Patent and Trademark Office;
2-15 (C) registered under the laws of another state;
2-16 or
2-17 (D) protected by Section 16.30 of this code or
2-18 by the federal Amateur Sports Act of 1978 (36 U.S.C. Section 371 et
2-19 seq.).
2-20 (3) "Service mark" has the meaning assigned by Section
2-21 16.01 of this code.
2-22 (4) "Trademark" has the meaning assigned by Section
2-23 16.01 of this code.
2-24 Sec. 20.02. COUNTERFEIT TRADEMARK, SERVICE MARK, OR
2-25 IDENTIFICATION MARK. For purposes of this chapter, a trademark,
3-1 service mark, or identification mark is counterfeit if the mark is
3-2 identical to, substantially indistinguishable from, or an imitation
3-3 of a protected mark the use or production of which is not
3-4 authorized by the owner of the protected mark.
3-5 Sec. 20.03. PRODUCTION OF COUNTERFEIT TRADEMARK, SERVICE
3-6 MARK, OR IDENTIFICATION MARK. (a) A person commits an offense if
3-7 the person knowingly produces a counterfeit trademark, service
3-8 mark, or identification mark or a good bearing a counterfeit
3-9 trademark, service mark, or identification mark.
3-10 (b) An offense under this section is:
3-11 (1) a felony of the second degree if the aggregate
3-12 retail value of the goods or services to which the counterfeit
3-13 trademark, service mark, or identification mark is attached or
3-14 intended to be attached or in connection with which the offender
3-15 used or intended the mark to be used is $100,000 or more;
3-16 (2) a felony of the third degree if the aggregate
3-17 retail value of the goods or services to which the counterfeit
3-18 trademark, service mark, or identification mark is attached or
3-19 intended to be attached or in connection with which the offender
3-20 used or intended the mark to be used is $10,000 or more but less
3-21 than $100,000; or
3-22 (3) a Class A misdemeanor if the aggregate retail
3-23 value of the goods or services to which the counterfeit trademark,
3-24 service mark, or identification mark is attached or intended to be
3-25 attached or in connection with which the offender used or intended
4-1 the mark to be used is less than $10,000.
4-2 Sec. 20.04. SALE OR OFFER FOR SALE OF COUNTERFEIT GOODS OR
4-3 SERVICES. (a) A person commits an offense if the person:
4-4 (1) sells, offers to sell, or possesses with the
4-5 intent to sell a good the person knows or should have known
4-6 contained a counterfeit trademark, service mark, or identification
4-7 mark intended to confuse or deceive the purchaser as to the origin
4-8 or nature of the good; or
4-9 (2) sells or offers for sale a service in conjunction
4-10 with a service mark the person knows is counterfeit.
4-11 (b) An offense under this section is:
4-12 (1) a felony of the third degree if the aggregate
4-13 retail value of the goods or services sold or offered for sale or
4-14 goods possessed is $10,000 or more; or
4-15 (2) a Class A misdemeanor if the aggregate retail
4-16 value of the goods or services sold or offered for sale or goods
4-17 possessed is less than $10,000.
4-18 Sec. 20.05. POSSESSION OF MATERIALS OR DEVICES TO PRODUCE
4-19 COUNTERFEIT TRADEMARK, SERVICE MARK, OR IDENTIFICATION MARK.
4-20 (a) A person commits an offense if the person possesses a tool,
4-21 machine, device, or other reproduction instrument or material with
4-22 the intent to produce a counterfeit trademark, service mark, or
4-23 identification mark.
4-24 (b) An offense under this section is a Class A misdemeanor.
4-25 SECTION 3. Subdivision (2), Article 59.01, Code of Criminal
5-1 Procedure, is amended to read as follows:
5-2 (2) "Contraband" means property of any nature,
5-3 including real, personal, tangible, or intangible, that is:
5-4 (A) used in the commission of:
5-5 (i) any first or second degree felony
5-6 under the Penal Code;
5-7 (ii) any felony under Section 38.04 or
5-8 Chapters 29, 30, 31, 32, or 35, Penal Code; [or]
5-9 (iii) any felony under The Securities Act
5-10 (Article 581-1 et seq., Vernon's Texas Civil Statutes); or
5-11 (iv) any felony under Chapter 20, Business
5-12 & Commerce Code;
5-13 (B) used or intended to be used in the
5-14 commission of:
5-15 (i) any felony under Chapter 481, Health
5-16 and Safety Code (Texas Controlled Substances Act);
5-17 (ii) any felony under Chapter 483, Health
5-18 and Safety Code;
5-19 (iii) a felony under Article 350, Revised
5-20 Statutes;
5-21 (iv) any felony under Chapter 34, Penal
5-22 Code;
5-23 (v) a Class A misdemeanor under Subchapter
5-24 B, Chapter 365, Health and Safety Code, if the defendant has been
5-25 previously convicted twice of an offense under that subchapter; or
6-1 (vi) any felony under The Sale of Checks
6-2 Act (Article 489d, Vernon's Texas Civil Statutes);
6-3 (C) the proceeds gained from the commission of a
6-4 felony listed in Paragraph (A) or (B) of this subdivision or a
6-5 crime of violence; or
6-6 (D) acquired with proceeds gained from the
6-7 commission of a felony listed in Paragraph (A) or (B) of this
6-8 subdivision or a crime of violence.
6-9 SECTION 4. This Act takes effect September 1, 1997.
6-10 SECTION 5. The importance of this legislation and the
6-11 crowded condition of the calendars in both houses create an
6-12 emergency and an imperative public necessity that the
6-13 constitutional rule requiring bills to be read on three several
6-14 days in each house be suspended, and this rule is hereby suspended.