18 U.S.C. § 2320 : US Code - Section 2320: Trafficking in counterfeit goods or services

Search 18 U.S.C. § 2320 : US Code - Section 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 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) Upon a determination by a preponderance of the evidence that
any articles in the possession of a defendant in a prosecution
under this section bear counterfeit marks, the United States may
obtain an order for the destruction of such articles.
(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 goods or
services;
(ii) that is identical with, or substantially
indistinguishable from, a mark registered for those goods or
services 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; and
(iii) 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 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 transport, transfer, or otherwise
dispose of, to another, as consideration for anything of value,
or make or obtain control of with intent so to transport,
transfer, or dispose of; and
(3) 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)(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
involve trafficking in counterfeit labels for phonorecords, copies
of computer programs or computer program documentation or
packaging, copies of motion pictures or other audiovisual 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 goods or services bearing counterfeit
marks (as defined in section 2320 of this title):
(A) The number of open investigations.
(B) The number of cases referred by the United States Customs
Service.
(C) The number of cases referred by other agencies or sources.
(D) The number and outcome, including settlements, sentences,
recoveries, and penalties, of all prosecutions brought under
sections 2318, 2319, 2319A, and 2320 of this title.
(2)(A) The report under paragraph (1), with respect to criminal
infringement of copyright, shall include the following:
(i) The number of infringement cases in these categories:
audiovisual (videos and films); audio (sound recordings);
literary works (books and musical compositions); computer
programs; video games; and, others.
(ii) The number of online infringement cases.
(iii) The number and dollar amounts of fines assessed in
specific categories of dollar amounts. These categories shall be:
no fines ordered; fines under $500; fines from $500 to $1,000;
fines from $1,000 to $5,000; fines from $5,000 to $10,000; and
fines over $10,000.
(iv) The total amount of restitution ordered in all copyright
infringement cases.
(B) In this paragraph, the term "online infringement cases" as
used in paragraph (2) means those cases where the infringer -
(i) advertised or publicized the infringing work on the
Internet; or
(ii) made the infringing work available on the Internet for
download, reproduction, performance, or distribution by other
persons.
(C) The information required under subparagraph (A) shall be
submitted in the report required in fiscal year 2005 and
thereafter.