1999 US Code
Title 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 113 - STOLEN PROPERTY
Sec. 2320 - Trafficking in counterfeit goods or services

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§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 ,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, be fined not more than ,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 ,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than ,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 220706 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) 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 title 18), criminal infringement of copyrights (as defined in section 2319 of title 18), unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances (as defined in section 2319A of title 18), or trafficking in goods or services bearing counterfeit marks (as defined in section 2320 of title 18):

(1) The number of open investigations.

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

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

(4) The number and outcome, including settlements, sentences, recoveries, and penalties, of all prosecutions brought under sections 2318, 2319, 2319A, and 2320 of title 18.

(Added Pub. L. 98–473, title II, §1502(a), Oct. 12, 1984, 98 Stat. 2178; amended Pub. L. 103–322, title XXXII, §320104(a), title XXXIII, §330016(1)(U), Sept. 13, 1994, 108 Stat. 2110, 2148; Pub. L. 104–153, §5, July 2, 1996, 110 Stat. 1387; Pub. L. 105–147, §2(f), Dec. 16, 1997, 111 Stat. 2679; Pub. L. 105–225, §4(b), Aug. 12, 1998, 112 Stat. 1499; Pub. L. 105–354, §2(c)(1), Nov. 3, 1998, 112 Stat. 3244.)

References in Text

The Lanham Act, referred to in subsecs. (c) and (e)(1)(B), (3), also known as the Trademark Act of 1946, is act July 5, 1946, ch. 540, 60 Stat. 427, as amended, which is classified generally to chapter 22 (§1051 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1051 of Title 15 and Tables.

The Federal Rules of Criminal Procedure, referred to in subsec. (d)(1), are set out in the Appendix to this title.

The date of enactment of this subsection, referred to in subsec. (f), is date of enactment of Pub. L. 104–153, which was approved July 2, 1996.

Codification

Another section 2320 was renumbered section 2321 of this title.

Amendments

1998—Subsec. (e)(1)(B). Pub. L. 105–225, §4(b)(1), as amended by Pub. L. 105–354, §2(c)(1), substituted “section 220706 of title 36” for “section 110 of the Olympic Charter Act”.

Subsec. (e)(2). Pub. L. 105–225, §4(b)(2), as amended by Pub. L. 105–354, §2(c)(1), inserted “and” after semicolon at end.

Subsec. (e)(3). Pub. L. 105–225, §4(b)(3), as amended by Pub. L. 105–354, §2(c)(1), substituted a period for “; and” at end.

Subsec. (e)(4). Pub. L. 105–225, §4(b)(4), as amended by Pub. L. 105–354, §2(c)(1), struck out par. (4) which read as follows: “the term ‘Olympic Charter Act’ means the Act entitled ‘An Act to incorporate the United States Olympic Association’, approved September 21, 1950 (36 U.S.C. 371 et seq.).”

1997—Subsecs. (d) to (f). Pub. L. 105–147 added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively.

1996—Subsec. (e). Pub. L. 104–153 added subsec. (e).

1994—Pub. L. 103–322, §330016(1)(U), which directed the amendment of this section by striking “not more than 0,000” and inserting “under this title”, could not be executed because the phrase “not more than 0,000” did not appear in text subsequent to amendment of subsec. (a) by Pub. L. 103–322, §320104(a). See below.

Subsec. (a). Pub. L. 103–322, §320104(a), in first sentence, substituted “,000,000 or imprisoned not more than 10 years” for “0,000 or imprisoned not more than five years” and “,000,000” for “,000,000”, and in second sentence, substituted “,000,000 or imprisoned not more than 20 years” for “,000,000 or imprisoned not more than fifteen years” and “,000,000” for “,000,000”.

Effective Date of 1998 Amendment

Pub. L. 105–354, §2(c), Nov. 3, 1998, 112 Stat. 3244, provided that the amendment made by section 2(c) is effective Aug. 12, 1998.

Section Referred to in Other Sections

This section is referred to in sections 1956, 1961 of this title; title 19 section 1595a; title 49 section 80302.