2005 Illinois Code - Chapter 765 Property 765 ILCS 1040/ Counterfeit Trademark Act.
(765 ILCS 1040/0.01) (from Ch. 140, par. 22.9)
Sec. 0.01.
Short title.
This Act may be cited as the
Counterfeit Trademark Act.
(Source: P.A. 86‑1324.)
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(765 ILCS 1040/1) (from Ch. 140, par. 23)
Sec. 1.
For the purposes of this Act, unless otherwise required by the
context:
"Counterfeit item" means any goods, components of goods, or services made,
produced, or knowingly sold or knowingly distributed that use or display a
trade mark, trade name, or service mark that is a spurious mark identical with
or substantially indistinguishable from the registered mark as registered with
the United States Patent and Trademark Office.
"Mark" includes any trade‑mark or service mark whether registered or
not. "Trade‑mark" means anything adopted and used by a person to identify
goods made, sold, produced or distributed by him or her or with his or her
authorization
and which distinguishes them from goods made, sold, produced or distributed
by others. "Service mark" means anything adopted and used by a person to
identify services rendered by him or her or with his or her authorization and
that
distinguishes them from services rendered by others.
"Person" means any individual, firm, partnership, corporation,
association, union or other organization.
A mark shall be deemed to be "used" (1) in the case of a trade‑mark,
when it is placed in any manner on the goods, in or on any container for
the goods, on the tags or labels affixed to the goods or containers, or is
displayed in physical association with the goods in the sale or
distribution thereof, or (2) in the case of a service mark, if it
identifies a service, even though the service may be rendered in connection
with the sale or distribution of goods of the owner of the mark. A mark
shall be deemed to be "used in this State" (1) in the case of a trade‑mark
when it is used on goods which are sold or otherwise distributed in this
State, or (2) in the case of a service mark if the service identified by
the mark is rendered or received in this State.
"Trade‑name" includes individual names and surnames, firm names and
corporate names used by manufacturers, industrialists, merchants,
agriculturists, and others to identify their businesses, vocations, or
occupations; the names or titles lawfully adopted and used by persons,
firms, associations, corporations, companies, unions, and any
manufacturing, industrial, commercial, agricultural, or other organizations
engaged in trade or commerce and capable of suing and being sued in a court
of law.
(Source: P.A. 89‑693, eff. 6‑1‑97.)
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(765 ILCS 1040/2) (from Ch. 140, par. 24)
Sec. 2.
Whoever counterfeits or imitates any
trade‑mark or service mark
of which he or she is not
the rightful owner or in any way utters or circulates any counterfeit or
imitation of such a trade‑mark or service mark or knowingly uses such
counterfeit or
imitation or knowingly sells or disposes of or keeps or has in his or her
possession, with intent that the same shall be sold or disposed of, any
goods, wares, merchandise, or other product of labor or service, to which
any such
counterfeit or imitation is attached or affixed, or on which any such
counterfeit or imitation is printed, painted, stamped or impressed, or
knowingly sells or disposes of any goods, wares, merchandise or other
product of labor contained in any box, case, can, or package to
which or on
which any such counterfeit or imitation is attached, affixed, printed,
painted, stamped or impressed, or keeps or has in his possession with
intent that the same shall be sold or disposed of, any goods, wares,
merchandise or other product of labor in any box, case, can or
package to
which or on which any such counterfeit, or imitation is attached, affixed,
printed, painted, stamped or impressed or knowingly sells a service using a
counterfeit service mark, shall be guilty of a Class A
misdemeanor for each offense, or in the case of a counterfeit item shall be
punished
as provided in Section 8.
(Source: P.A. 89‑693, eff. 6‑1‑97.)
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(765 ILCS 1040/3) (from Ch. 140, par. 25)
Sec. 3.
Every person who shall knowingly use or display a trade‑mark,
trade name, or service mark of which he or she is not the lawful owner
in any manner not authorized
by such owner, whether or not the unauthorized use creates a likelihood of
confusion or misunderstanding, (a) in the sale of goods or services
produced by the
owner, but with alterations in packaging or labeling, or (b) in the sale of
goods or services produced by the owner but in a packaging form not
intended by him for
such sale, or (c) in the packaging or labeling of goods or services not
produced by the
owner, if the trade‑mark, trade name, or service mark of the
owner is used for the purpose
or with the effect of exploiting or impairing the owner's good will or as a
means of representing a quality, property or characteristic of the goods or
services
being sold, other than the utility of the goods or services in the repair
of or as a
replacement of a component of the product of the owner and the trade‑mark, trade name, or service mark is used in a non‑misleading manner
solely to indicate such
utility, shall be deemed guilty of a Class A misdemeanor, or in the case of a
counterfeit item shall be punished as provided in Section 8. In all cases
where such owner is an incorporated association or union, suits under this
Act may be commenced and prosecuted by any officer or member of such
association or union on behalf of and for the use of such association or
union.
(Source: P.A. 89‑693, eff. 6‑1‑97.)
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(765 ILCS 1040/4) (from Ch. 140, par. 26)
Sec. 4.
Any person or persons who shall in any way knowingly use the name or seal
of any
trade‑mark or service mark owner in and about the sale of goods or
services or otherwise, not being
authorized to so use the same shall be deemed guilty of a Class A
misdemeanor, or in the case of a counterfeit item shall be punished as provided
in Section 8.
(Source: P.A. 89‑693, eff. 6‑1‑97.)
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(765 ILCS 1040/7) (from Ch. 140, par. 28)
Sec. 7.
(Repealed).
(Source: P.A. 79‑1359. Repealed by P.A. 89‑693, eff. 6‑1‑97.)
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(765 ILCS 1040/8)
Sec. 8.
Sentence.
(a) A person who knowingly sells, offers for sale, holds for sale, or
uses fewer than 100 counterfeit items or counterfeit items having a retail
value in the aggregate of $1,000 or less is guilty of a Class A misdemeanor
and shall be fined at least 25% of the retail value of all counterfeit items
but no more than $1,000, except that a person who has a prior conviction for a
violation of this Act within the preceding 5 years is guilty of a Class 4
felony and shall be fined at least 25% but no more than 100% of the retail
value of all counterfeit items.
(b) A person who knowingly sells, offers for sale, holds for sale, or uses
100 or more but fewer than 500 counterfeit items or counterfeit items having
a retail value in the aggregate of more than $1,000 but less than $25,000 is
guilty of a Class A misdemeanor and shall be fined at least 25% but no more
than 100% of the retail value of all counterfeit items, except that a person
who
has a prior conviction for a violation of this Act within the preceding 5 years
is guilty of a Class 4 felony and shall be fined at least 25% but no more than
100% of the retail value of all counterfeit items.
(c) A person who knowingly sells, offers for sale, holds for sale, or uses
500 or more but fewer than 2,000 counterfeit items or counterfeit items
having a retail value in the aggregate of $25,000 or more but less than
$100,000
is guilty of a Class 4 felony and shall be fined at least 25% but no more than
100% of the retail value of all counterfeit items.
(d) A person who knowingly sells, offers for sale, holds for sale, or uses
2,000 or more counterfeit items or counterfeit items having a retail value
in the aggregate of $100,000 or more is guilty of a Class 3 felony and shall
be fined at least 25% but no more than 100% of the retail value of all
counterfeit items.
(d‑5) For the purposes of determining the number of counterfeit items
under subsection (a), (b), (c), or (d), the service marks or trade marks need
not be an aggregate of identical marks but may be the aggregate of all
counterfeit items offered for sale, held for sale, or used by the
defendant.
(e) Unless otherwise specifically provided, a person, including a
corporation, convicted of violating this Act shall
be fined at least 25% of the retail value of all the counterfeit items. In
addition to any fine, the court may, in its discretion, order that restitution
be paid to the owners of the trademark, trade name, or service mark.
(f) A manufacturer of counterfeit items is guilty of a Class 4 felony for a
first offense and a Class 3 felony for second or subsequent offenses and may be
fined up to 3 times the retail value of all counterfeit items produced by the
manufacturer.
(g) The retail value of the counterfeit item shall be the counterfeiter's
per unit sale price for the counterfeit items. The retail value of a component
of a counterfeit item shall be the same as the sale price of the counterfeit
item with which the component is sold.
(Source: P.A. 89‑693, eff. 6‑1‑97.)
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(765 ILCS 1040/9)
Sec. 9.
Seizure and disposition.
(a) A peace officer may, upon probable cause, seize any goods, wares,
merchandise, or
other product of labor or services to which a counterfeit trademark, trade
name, or service mark is attached or affixed, or on which the counterfeit is
printed, painted, stamped or impressed, or any component of that merchandise
knowingly possessed in violation of this Act.
(b) A peace officer may seize any vehicle, aircraft, vessel, machinery or
other instrumentality which the
officer reasonably believed was knowingly used to facilitate a violation of
this Act.
(c) Seized counterfeit goods shall be destroyed upon the written consent of
the
defendant or by judicial determination that the seized goods are counterfeit
items or otherwise bear the trademark, trade name or service mark without the
authorization of the owner, unless another disposition of the goods is
consented to by the owner of the trademark, trade
name or service mark.
The seizure and forfeiture of vehicles, aircraft, vessels, machinery, or
other instrumentalities provided for by this Section shall be carried out in
the same manner and pursuant to the same procedures as provided in Article 36
of the Criminal Code of 1961 with respect to vessels, vehicles, and
aircraft.
(Source: P.A. 89‑693, eff. 6‑1‑97.)
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