1-1 By: Armbrister S.B. No. 228
1-2 (In the Senate - Filed January 16, 1997; January 21, 1997,
1-3 read first time and referred to Committee on International
1-4 Relations, Trade, and Technology; February 6, 1997, reported
1-5 favorably by the following vote: Yeas 7, Nays 0; February 6, 1997,
1-6 sent to printer.)
1-7 A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to certain counterfeit trademarks, service marks, or
1-10 identification marks in connection with the sale or manufacture of
1-11 goods and services; providing penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. (a) The legislature finds and declares that:
1-14 (1) the residents of this state have a right to
1-15 receive those goods and services the residents reasonably believe
1-16 they are purchasing or for which the residents contract; and
1-17 (2) the manufacture and sale of counterfeit goods,
1-18 including auto and aircraft parts, and the offer of services
1-19 through counterfeit service marks pose a serious threat to the
1-20 health and safety of the residents of this state and result in
1-21 economic disruption to the legitimate businesses located in this
1-22 state.
1-23 (b) To protect the residents and businesses of this state,
1-24 the legislature finds it necessary to take appropriate action
1-25 through this Act to:
1-26 (1) remove counterfeit goods, including parts, from
1-27 the channels of commerce; and
1-28 (2) prevent the manufacture, sale, and distribution of
1-29 counterfeit goods or the offer of counterfeit services through
1-30 counterfeit service marks.
1-31 (c) For the purposes stated in this section, the legislature
1-32 finds it necessary to include forfeiture of property provisions in
1-33 this Act.
1-34 SECTION 2. Title 2, Business & Commerce Code, is amended by
1-35 adding Chapter 20 to read as follows:
1-36 CHAPTER 20. COUNTERFEIT TRADEMARKS, SERVICE MARKS,
1-37 AND IDENTIFICATION MARKS
1-38 Sec. 20.01. DEFINITIONS. In this chapter:
1-39 (1) "Identification mark" means a data plate, serial
1-40 number, or part identification number.
1-41 (2) "Protected mark" means a trademark or service mark
1-42 or an identification mark that is:
1-43 (A) registered with the secretary of state;
1-44 (B) registered on the principal register of the
1-45 United States Patent and Trademark Office;
1-46 (C) registered under the laws of another state;
1-47 or
1-48 (D) protected by Section 16.30 of this code or
1-49 by the federal Amateur Sports Act of 1978 (36 U.S.C. Section 371 et
1-50 seq.).
1-51 (3) "Service mark" has the meaning assigned by Section
1-52 16.01 of this code.
1-53 (4) "Trademark" has the meaning assigned by Section
1-54 16.01 of this code.
1-55 Sec. 20.02. COUNTERFEIT TRADEMARK, SERVICE MARK, OR
1-56 IDENTIFICATION MARK. For purposes of this chapter, a trademark,
1-57 service mark, or identification mark is counterfeit if the mark is
1-58 identical to, substantially indistinguishable from, or an imitation
1-59 of a protected mark the use or production of which is not
1-60 authorized by the owner of the protected mark.
1-61 Sec. 20.03. PRODUCTION OF COUNTERFEIT TRADEMARK, SERVICE
1-62 MARK, OR IDENTIFICATION MARK. (a) A person commits an offense if
1-63 the person knowingly produces a counterfeit trademark, service
1-64 mark, or identification mark or a good bearing a counterfeit
2-1 trademark, service mark, or identification mark.
2-2 (b) An offense under this section is:
2-3 (1) a felony of the second degree if the aggregate
2-4 retail value of the goods or services to which the counterfeit
2-5 trademark, service mark, or identification mark is attached or
2-6 intended to be attached or in connection with which the offender
2-7 used or intended the mark to be used is $100,000 or more;
2-8 (2) a felony of the third degree if the aggregate
2-9 retail value of the goods or services to which the counterfeit
2-10 trademark, service mark, or identification mark is attached or
2-11 intended to be attached or in connection with which the offender
2-12 used or intended the mark to be used is $10,000 or more but less
2-13 than $100,000; or
2-14 (3) a Class A misdemeanor if the aggregate retail
2-15 value of the goods or services to which the counterfeit trademark,
2-16 service mark, or identification mark is attached or intended to be
2-17 attached or in connection with which the offender used or intended
2-18 the mark to be used is less than $10,000.
2-19 Sec. 20.04. SALE OR OFFER FOR SALE OF COUNTERFEIT GOODS OR
2-20 SERVICES. (a) A person commits an offense if the person:
2-21 (1) sells, offers to sell, or possesses with the
2-22 intent to sell a good the person knows or should have known
2-23 contained a counterfeit trademark, service mark, or identification
2-24 mark intended to confuse or deceive the purchaser as to the origin
2-25 or nature of the good; or
2-26 (2) sells or offers for sale a service in conjunction
2-27 with a service mark the person knows is counterfeit.
2-28 (b) An offense under this section is:
2-29 (1) a felony of the third degree if the aggregate
2-30 retail value of the goods or services sold or offered for sale or
2-31 goods possessed is $10,000 or more; or
2-32 (2) a Class A misdemeanor if the aggregate retail
2-33 value of the goods or services sold or offered for sale or goods
2-34 possessed is less than $10,000.
2-35 Sec. 20.05. POSSESSION OF MATERIALS OR DEVICES TO PRODUCE
2-36 COUNTERFEIT TRADEMARK, SERVICE MARK, OR IDENTIFICATION MARK.
2-37 (a) A person commits an offense if the person possesses a tool,
2-38 machine, device, or other reproduction instrument or material with
2-39 the intent to produce a counterfeit trademark, service mark, or
2-40 identification mark.
2-41 (b) An offense under this section is a Class A misdemeanor.
2-42 SECTION 3. Subdivision (2), Article 59.01, Code of Criminal
2-43 Procedure, is amended to read as follows:
2-44 (2) "Contraband" means property of any nature,
2-45 including real, personal, tangible, or intangible, that is:
2-46 (A) used in the commission of:
2-47 (i) any first or second degree felony
2-48 under the Penal Code;
2-49 (ii) any felony under Section 38.04 or
2-50 Chapters 29, 30, 31, 32, or 35, Penal Code; [or]
2-51 (iii) any felony under The Securities Act
2-52 (Article 581-1 et seq., Vernon's Texas Civil Statutes); or
2-53 (iv) any felony under Chapter 20, Business
2-54 & Commerce Code;
2-55 (B) used or intended to be used in the
2-56 commission of:
2-57 (i) any felony under Chapter 481, Health
2-58 and Safety Code (Texas Controlled Substances Act);
2-59 (ii) any felony under Chapter 483, Health
2-60 and Safety Code;
2-61 (iii) a felony under Article 350, Revised
2-62 Statutes;
2-63 (iv) any felony under Chapter 34, Penal
2-64 Code;
2-65 (v) a Class A misdemeanor under Subchapter
2-66 B, Chapter 365, Health and Safety Code, if the defendant has been
2-67 previously convicted twice of an offense under that subchapter; or
2-68 (vi) any felony under The Sale of Checks
2-69 Act (Article 489d, Vernon's Texas Civil Statutes);
3-1 (C) the proceeds gained from the commission of a
3-2 felony listed in Paragraph (A) or (B) of this subdivision or a
3-3 crime of violence; or
3-4 (D) acquired with proceeds gained from the
3-5 commission of a felony listed in Paragraph (A) or (B) of this
3-6 subdivision or a crime of violence.
3-7 SECTION 4. This Act takes effect September 1, 1997.
3-8 SECTION 5. The importance of this legislation and the
3-9 crowded condition of the calendars in both houses create an
3-10 emergency and an imperative public necessity that the
3-11 constitutional rule requiring bills to be read on three several
3-12 days in each house be suspended, and this rule is hereby suspended.
3-13 * * * * *