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18 USC - Chicago-Kent College of Law

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18 USC - Chicago-Kent College of Law ...

     FOR EDUCATIONAL USE ONLY Page 1

     18 U.S.C.A. ? 2320

    Effective: March 16, 2006

United States Code Annotated Currentness

    Title 18. Crimes and Criminal Procedure (Refs & Annos)

     Part I. Crimes (Refs & Annos)

     Chapter 113. Stolen Property (Refs & Annos)

    ? 2320. Trafficking in counterfeit goods or services

     (a) Whoever intentionally traffics or attempts to traffic in goods or services and knowingly uses a

    counterfeit mark on or in connection with such goods or services, or intentionally traffics or

    attempts to traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms,

    boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature,

    knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause

    confusion, to cause mistake, or to deceive, shall, if an individual, be fined not more than

    $2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual,

    be fined not more than $5,000,000. In the case of an offense by a person under this section that

    occurs after that person is convicted of another offense under this section, the person convicted, if

    an individual, shall be fined not more than $5,000,000 or imprisoned not more than 20 years, or

    both, and if other than an individual, shall be fined not more than $15,000,000.

(b)(1) The following property shall be subject to forfeiture to the United States and no property

    right shall exist in such property:

(A) Any article bearing or consisting of a counterfeit mark used in committing a violation of

    subsection (a).

(B) Any property used, in any manner or part, to commit or to facilitate the commission of a

    violation of subsection (a).

(2) The provisions of chapter 46 of this title relating to civil forfeitures, including section 983 of

    this title, shall extend to any seizure or civil forfeiture under this section. At the conclusion of the

    forfeiture proceedings, the court, unless otherwise requested by an agency of the United States,

    shall order that any forfeited article bearing or consisting of a counterfeit mark be destroyed or

    otherwise disposed of according to law.

(3)(A) The court, in imposing sentence on a person convicted of an offense under this section, shall

    order, in addition to any other sentence imposed, that the person forfeit to the United States--

(i) any property constituting or derived from any proceeds the person obtained, directly or

    indirectly, as the result of the offense;

(ii) any of the person's property used, or intended to be used, in any manner or part, to commit, ? 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. facilitate, aid, or abet the commission of the offense; and

     FOR EDUCATIONAL USE ONLY Page 2 18 U.S.C.A. ? 2320 (B) The forfeiture of property under subparagraph (A), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the (iii) any article that bears or consists of a counterfeit mark used in committing the offense.procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act

    of 1970 (21 U.S.C. 853), other than subsection (d) of that section. Notwithstanding section 413(h)

    of that Act, at the conclusion of the forfeiture proceedings, the court shall order that any forfeited

    article or component of an article bearing or consisting of a counterfeit mark be destroyed.

    (4) When a person is convicted of an offense under this section, the court, pursuant to sections 3556, 3663A, and 3664, shall order the person to pay restitution to the owner of the mark and any

    other victim of the offense as an offense against property referred to in section 3663A(c)(1)(A)(ii).

    (5) The term "victim", as used in paragraph (4), has the meaning given that term in section 3663A(a)(2).

(c) All defenses, affirmative defenses, and limitations on remedies that would be applicable in an

    action under the Lanham Act shall be applicable in a prosecution under this section. In a

    prosecution under this section, the defendant shall have the burden of proof, by a preponderance of

    the evidence, of any such affirmative defense.

    (d)(1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer

    shall receive, a victim impact statement that identifies the victim of the offense and the extent and

    scope of the injury and loss suffered by the victim, including the estimated economic impact of the

    offense on that victim.

    (2) Persons permitted to submit victim impact statements shall include--

(A) producers and sellers of legitimate goods or services affected by conduct involved in the

    offense;

    (B) holders of intellectual property rights in such goods or services; and

    (C) the legal representatives of such producers, sellers, and holders.

(e) For the purposes of this section--

(1) the term "counterfeit mark" means--

    (A) a spurious mark--

    (i) that is used in connection with trafficking in any goods, services, labels, patches, stickers,

    wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags,

    documentation, or packaging of any type or nature;

    ? 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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     18 U.S.C.A. ? 2320

    (ii) that is identical with, or substantially indistinguishable from, a mark registered on the

    principal register in the United States Patent and Trademark Office and in use, whether or not

    the defendant knew such mark was so registered;

    (iii) that is applied to or used in connection with the goods or services for which the mark is

    registered with the United States Patent and Trademark Office, or is applied to or consists of

    a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case,

    hangtag, documentation, or packaging of any type or nature that is designed, marketed, or

    otherwise intended to be used on or in connection with the goods or services for which the

    mark is registered in the United States Patent and Trademark Office; and

    (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive; or

    (B) a spurious designation that is identical with, or substantially indistinguishable from, a

    designation as to which the remedies of the Lanham Act are made available by reason of

    section 220506 of title 36;

    but such term does not include any mark or designation used in connection with goods or

    services, or a mark or designation applied to labels, patches, stickers, wrappers, badges,

    emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or

    packaging of any type or nature used in connection with such goods or services, of which the

    manufacturer or producer was, at the time of the manufacture or production in question,

    authorized to use the mark or designation for the type of goods or services so manufactured or

    produced, by the holder of the right to use such mark or designation.

(2) the term "traffic" means to transport, transfer, or otherwise dispose of, to another, for

    purposes of commercial advantage or private financial gain, or to make, import, export, obtain

    control of, or possess, with intent to so transport, transfer, or otherwise dispose of;

    (3) the term "financial gain" includes the receipt, or expected receipt, of anything of value; and

(4) the term "Lanham Act" means the Act entitled "An Act to provide for the registration and

    protection of trademarks used in commerce, to carry out the provisions of certain international

    conventions, and for other purposes", approved July 5, 1946 (15 U.S.C. 1051 et seq.).

(f) Nothing in this section shall entitle the United States to bring a criminal cause of action under

    this section for the repackaging of genuine goods or services not intended to deceive or confuse.

(g)(1) Beginning with the first year after the date of enactment of this subsection, the Attorney

    General shall include in the report of the Attorney General to Congress on the business of the

    Department of Justice prepared pursuant to section 522 of title 28, an accounting, on a district by

    district basis, of the following with respect to all actions taken by the Department of Justice that

    ? 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. involve trafficking in counterfeit labels for phonorecords, copies of computer programs or

     computer program documentation or packaging, copies of motion pictures or other audiovisual

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     18 U.S.C.A. ? 2320

    works (as defined in section 2318 of this title), criminal infringement of copyrights (as defined in section 2319 of this title), unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances (as defined in section 2319A of this title), or trafficking in (A) The number of open investigations. goods or services bearing counterfeit marks (as defined in section 2320 of this title):

    (B) The number of cases referred by the United States Customs Service.

    (C) The number of cases referred by other agencies or sources.