AN ACT
1-1 relating to the creation of the offense of trademark
1-2 counterfeiting.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. (a) The legislature finds and declares that the
1-5 counterfeiting of legitimate goods and services:
1-6 (1) has been connected with organized crime;
1-7 (2) poses health and safety threats to Texas
1-8 consumers;
1-9 (3) eliminates Texas jobs;
1-10 (4) results in economic disruption to legitimate
1-11 businesses located in Texas;
1-12 (5) is a multimillion dollar drain on the Texas
1-13 economy; and
1-14 (6) deprives legitimate intellectual property owners
1-15 of substantial revenue and consumer goodwill.
1-16 (b) To protect the residents and businesses of Texas, the
1-17 legislature finds it necessary to take appropriate action through
1-18 this Act to:
1-19 (1) remove counterfeit goods, including parts, from
1-20 the channels of commerce; and
1-21 (2) prevent the manufacture, sale, and distribution of
1-22 counterfeit goods or the offer of counterfeit services through
1-23 counterfeit service marks.
2-1 SECTION 2. Subchapter B, Chapter 32, Penal Code, is amended
2-2 by adding Section 32.23 to read as follows:
2-3 Sec. 32.23. TRADEMARK COUNTERFEITING. (a) In this section:
2-4 (1) "Counterfeit mark" means a mark that is identical
2-5 to or substantially indistinguishable from a protected mark the use
2-6 or production of which is not authorized by the owner of the
2-7 protected mark.
2-8 (2) "Identification mark" means a data plate, serial
2-9 number, or part identification number.
2-10 (3) "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, Business &
2-18 Commerce Code, or by 36 U.S.C. Section 371 et seq.
2-19 (4) "Retail value" means the actor's regular selling
2-20 price for a counterfeit mark or an item or service that bears or is
2-21 identified by a counterfeit mark, except that if an item bearing a
2-22 counterfeit mark is a component of a finished product, the retail
2-23 value means the actor's regular selling price of the finished
2-24 product on or in which the component is used, distributed, or sold.
2-25 (5) "Service mark" has the meaning assigned by Section
3-1 16.01, Business & Commerce Code.
3-2 (6) "Trademark" has the meaning assigned by Section
3-3 16.01, Business & Commerce Code.
3-4 (b) A person commits an offense if the person intentionally
3-5 manufactures, displays, advertises, distributes, offers for sale,
3-6 sells, or possesses with intent to sell or distribute a counterfeit
3-7 mark or an item or service that:
3-8 (1) bears or is identified by a counterfeit mark; or
3-9 (2) the person knows or should have known bears or is
3-10 identified by a counterfeit mark.
3-11 (c) A state or federal certificate of registration of
3-12 intellectual property is prima facie evidence of the facts stated
3-13 in the certificate.
3-14 (d) For the purposes of Subsection (e), when items or
3-15 services are the subject of counterfeiting in violation of this
3-16 section pursuant to one scheme or continuing course of conduct, the
3-17 conduct may be considered as one offense and the retail value of
3-18 the items or services aggregated in determining the grade of
3-19 offense.
3-20 (e) An offense under this section is a:
3-21 (1) Class C misdemeanor if the retail value of the
3-22 item or service is less than $20;
3-23 (2) Class B misdemeanor if the retail value of the
3-24 item or service is $20 or more but less than $500;
3-25 (3) Class A misdemeanor if the retail value of the
4-1 item or service is $500 or more but less than $1,500;
4-2 (4) state jail felony if the retail value of the item
4-3 or service is $1,500 or more but less than $20,000;
4-4 (5) felony of the third degree if the retail value of
4-5 the item or service is $20,000 or more but less than $100,000;
4-6 (6) felony of the second degree if the retail value of
4-7 the item or service is $100,000 or more but less than $200,000; or
4-8 (7) felony of the first degree if the retail value of
4-9 the item or service is $200,000 or more.
4-10 SECTION 3. (a) The change in law made by this Act applies
4-11 only to an offense committed on or after the effective date of this
4-12 Act. For purposes of this section, an offense is committed before
4-13 the effective date of this Act if any element of the offense occurs
4-14 before the effective date.
4-15 (b) An offense committed before the effective date of this
4-16 Act is covered by the law in effect when the offense was committed,
4-17 and the former law is continued in effect for that purpose.
4-18 SECTION 4. This Act takes effect September 1, 1997.
4-19 SECTION 5. The importance of this legislation and the
4-20 crowded condition of the calendars in both houses create an
4-21 emergency and an imperative public necessity that the
4-22 constitutional rule requiring bills to be read on three several
4-23 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 228 passed the Senate on
February 19, 1997, by a viva-voce vote; and that the Senate
concurred in House amendment on June 1, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 228 passed the House, with
amendment, on May 7, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor