By Armbrister                                    S.B. No. 228

      75R1185 CLG-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to certain counterfeit trademarks, service marks, or

 1-3     identification marks in connection with the sale or manufacture of

 1-4     goods and services; providing penalties.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  (a)  The legislature finds and declares that:

 1-7                 (1)  the residents of this state have a right to

 1-8     receive those goods and services the residents reasonably believe

 1-9     they are purchasing or for which the residents contract; and

1-10                 (2)  the manufacture and sale of counterfeit goods,

1-11     including auto and aircraft parts, and the offer of services

1-12     through counterfeit service marks pose a serious threat to the

1-13     health and safety of the residents of this state and result in

1-14     economic disruption to the legitimate businesses located in this

1-15     state.

1-16           (b)  To protect the residents and businesses of this state,

1-17     the legislature finds it necessary to take appropriate action

1-18     through 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.

1-24           (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,

2-26     service mark, or identification mark is counterfeit if the mark is

2-27     identical to, substantially indistinguishable from, or an imitation

 3-1     of a protected mark the use or production of which is not

 3-2     authorized by the owner of the protected mark.

 3-3           Sec. 20.03.  PRODUCTION OF COUNTERFEIT TRADEMARK, SERVICE

 3-4     MARK, OR IDENTIFICATION MARK.  (a)  A person commits an offense if

 3-5     the person knowingly produces a counterfeit trademark, service

 3-6     mark, or identification mark or a good bearing a counterfeit

 3-7     trademark, service mark, or identification mark.

 3-8           (b)  An offense under this section is:

 3-9                 (1)  a felony of the second degree if the aggregate

3-10     retail value of the goods or services to which the counterfeit

3-11     trademark, service mark, or identification mark is attached or

3-12     intended to be attached or in connection with which the offender

3-13     used or intended the mark to be used is $100,000 or more;

3-14                 (2)  a felony of the third degree if the aggregate

3-15     retail  value of the goods or services to which the counterfeit

3-16     trademark, service mark, or identification mark is attached or

3-17     intended to be attached or in connection with which the offender

3-18     used or intended the mark to be used is $10,000 or more but less

3-19     than $100,000; or

3-20                 (3)  a Class A misdemeanor if the aggregate retail

3-21     value of the goods or services to which the counterfeit trademark,

3-22     service mark, or identification mark is attached or intended to be

3-23     attached or in connection with which the offender used or intended

3-24     the mark to be used is less than $10,000.

3-25           Sec. 20.04.  SALE OR OFFER FOR SALE OF COUNTERFEIT GOODS OR

3-26     SERVICES.  (a)  A person commits an offense if the person:

3-27                 (1)  sells, offers to sell, or possesses with the

 4-1     intent to sell a good the person knows or should have known

 4-2     contained a counterfeit trademark, service mark, or identification

 4-3     mark intended to confuse or deceive the purchaser as to the origin

 4-4     or nature of the good; or

 4-5                 (2)  sells or offers for sale a service in conjunction

 4-6     with a service mark the person knows is counterfeit.

 4-7           (b)  An offense under this section is:

 4-8                 (1)  a felony of the third degree if the aggregate

 4-9     retail  value of the goods or services sold or offered for sale or

4-10     goods possessed is $10,000 or more; or

4-11                 (2)  a Class A misdemeanor if the aggregate retail

4-12     value of the goods or services sold or offered for sale or goods

4-13     possessed is less than $10,000.

4-14           Sec. 20.05.  POSSESSION OF MATERIALS OR DEVICES TO PRODUCE

4-15     COUNTERFEIT TRADEMARK, SERVICE MARK, OR IDENTIFICATION MARK.  (a)

4-16     A person commits an offense if the person possesses a tool,

4-17     machine, device, or other reproduction instrument or material with

4-18     the intent to produce a counterfeit trademark, service mark, or

4-19     identification mark.

4-20           (b)  An offense under this section is a Class A misdemeanor.

4-21           SECTION 3.  Article 59.01(2), Code of Criminal Procedure, is

4-22     amended to read as follows:

4-23                 (2)  "Contraband" means property of any nature,

4-24     including real, personal, tangible, or intangible, that is:

4-25                       (A)  used in the commission of:

4-26                             (i)  any first or second degree felony

4-27     under the Penal Code;

 5-1                             (ii)  any felony under Section 38.04 or

 5-2     Chapters 29, 30, 31, 32, or 35, Penal Code; [or]

 5-3                             (iii)  any felony under The Securities Act

 5-4     (Article 581-1 et seq., Vernon's Texas Civil Statutes); or

 5-5                             (iv)  any felony under Chapter 20, Business

 5-6     & Commerce Code;

 5-7                       (B)  used or intended to be used in the

 5-8     commission of:

 5-9                             (i)  any felony under Chapter 481, Health

5-10     and Safety Code (Texas Controlled Substances Act);

5-11                             (ii)  any felony under Chapter 483, Health

5-12     and Safety Code;

5-13                             (iii)  a felony under Article 350, Revised

5-14     Statutes;

5-15                             (iv)  any felony under Chapter 34, Penal

5-16     Code;

5-17                             (v)  a Class A misdemeanor under Subchapter

5-18     B, Chapter 365, Health and Safety Code, if the defendant has been

5-19     previously convicted twice of an offense under that subchapter; or

5-20                             (vi)  any felony under The Sale of Checks

5-21     Act (Article 489d, Vernon's Texas Civil Statutes);

5-22                       (C)  the proceeds gained from the commission of a

5-23     felony listed in Paragraph (A) or (B) of this subdivision or a

5-24     crime of violence; or

5-25                       (D)  acquired with proceeds gained from the

5-26     commission of a felony listed in Paragraph (A) or (B) of this

5-27     subdivision or a crime of violence.

 6-1           SECTION 4.  This Act takes effect September 1, 1997.

 6-2           SECTION 5.  The importance of this legislation and the

 6-3     crowded condition of the calendars in both houses create an

 6-4     emergency and an imperative public necessity that the

 6-5     constitutional rule requiring bills to be read on three several

 6-6     days in each house be suspended, and this rule is hereby suspended.