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PAG LIN
1 1 Section 1. NEW SECTION. 714.26 INTELLECTUAL PROPERTY
1 2 COUNTERFEITING.
1 3 1. DEFINITIONS. As used in this section unless the
1 4 context otherwise requires:
1 5 a. "Counterfeit mark" means any unauthorized reproduction
1 6 or copy of intellectual property, or intellectual property
1 7 affixed to any item knowingly sold, offered for sale,
1 8 manufactured, or distributed, or identifying services offered
1 9 or rendered, without authority of the owner of the
1 10 intellectual property.
1 11 b. "Intellectual property" means any trademark, service
1 12 mark, trade name, label, term, device, design, or word adopted
1 13 or used by a person to identify the items or services of the
1 14 person.
1 15 c. "Retail value" means the counterfeiter's regular
1 16 selling price for the item bearing or identified by a
1 17 counterfeit mark. If an item bearing a counterfeit mark is a
1 18 component of a finished product, the retail value shall be the
1 19 counterfeiter's regular selling price of the finished product
1 20 on or which the component would be utilized. The retail value
1 21 shall be the aggregate quantity of all items seized which are
1 22 bearing or identified by a counterfeit mark.
1 23 2. CRIMINAL OFFENSE. A person who willfully manufactures,
1 24 produces, uses, displays, advertises, distributes, offers for
1 25 sale, sells, possesses with intent to sell or distributes any
1 26 item or willfully provides service bearing or identified by a
1 27 counterfeit mark commits intellectual property counterfeiting.
1 28 a. A person commits intellectual property counterfeiting
1 29 in the first degree if any of the following apply:
1 30 (1) The person is manufacturing or producing an item
1 31 bearing or identified by a counterfeit mark.
1 32 (2) The offense involves more than one thousand items
1 33 bearing or identified by a counterfeit mark and the total
1 34 retail value of such items is equal to or greater than ten
1 35 thousand dollars.
2 1 (3) The offense is a third or subsequent violation of this
2 2 section.
2 3 Intellectual property counterfeiting in the first degree is
2 4 a class "C" felony.
2 5 b. A person commits intellectual property counterfeiting
2 6 in the second degree if any of the following apply:
2 7 (1) The offense involves more than one hundred items but
2 8 does not involve more than one thousand items bearing or
2 9 identified by a counterfeit mark and the total retail value of
2 10 such items is equal to or greater than one thousand dollars
2 11 but less than ten thousand dollars.
2 12 (2) The offense is a second violation of this section.
2 13 Intellectual property counterfeiting in the second degree
2 14 is a class "D" felony.
2 15 c. All intellectual property counterfeiting which is not
2 16 intellectual property counterfeiting in the first degree or
2 17 second degree is intellectual property counterfeiting in the
2 18 third degree. Intellectual property counterfeiting in the
2 19 third degree is an aggravated misdemeanor.
2 20 3. EVIDENCE. Any state or federal certificate of
2 21 registration of any intellectual property shall be prima facie
2 22 evidence of ownership of the intellectual property in dispute.
2 23 4. SEIZURE AND DISPOSITION. Any items bearing or
2 24 identified by a counterfeit mark, and all personal property,
2 25 including but not limited to any items, objects, tools,
2 26 machines, equipment, instrumentalities, or vehicles used in
2 27 connection with a violation of this section, shall be seized
2 28 by any law enforcement agency.
2 29 (1) All seized personal property shall be disposed of in
2 30 accordance with section 809.5 or as provided in subparagraph
2 31 (2).
2 32 (2) Upon request of the intellectual property owner, all
2 33 seized items bearing or identified by a counterfeit mark shall
2 34 be released by the seizing agency to the intellectual property
2 35 owner for destruction or disposition. If the intellectual
3 1 property owner does not request release of the seized items,
3 2 the items shall be destroyed unless the intellectual property
3 3 owner consents to another disposition.
3 4 EXPLANATION
3 5 This bill creates the criminal offense of intellectual
3 6 property counterfeiting and provides a penalty.
3 7 The bill provides that any person who willfully
3 8 manufactures, produces, uses, displays, advertises, sells,
3 9 distributes, or possesses with intent to sell or distribute
3 10 any item or provides services, bearing or identified by a
3 11 counterfeit mark commits intellectual property counterfeiting.
3 12 "Counterfeit mark" is defined under the bill to mean any
3 13 unauthorized reproduction or copy of intellectual property.
3 14 "Intellectual property" means any trademark, service mark,
3 15 trade name, label, term, device, design, or word adopted or
3 16 used by a person to identify the goods or services of the
3 17 person.
3 18 The bill provides that a person commits intellectual
3 19 property counterfeiting in the first degree if the person
3 20 manufactures or produces the counterfeit items, or the offense
3 21 involves 1,000 or more counterfeited items under a retail
3 22 value equal to or greater than $10,000, or the person has at
3 23 least two prior violations of this bill. Intellectual
3 24 property counterfeiting in the first degree is a class "C"
3 25 felony.
3 26 The bill provides that a person commits intellectual
3 27 property counterfeiting in the second degree if the offense
3 28 involves more than 100 but does not involve more than 1,000
3 29 counterfeited items and the total retail value of such items
3 30 is equal to or greater than $1,000 but less than $10,000, or
3 31 the person has a prior intellectual property counterfeiting
3 32 violation. Intellectual property counterfeiting in the second
3 33 degree is a class "D" felony.
3 34 All intellectual property counterfeiting which is not
3 35 intellectual property counterfeiting in the first degree or
4 1 second degree is intellectual property counterfeiting in the
4 2 third degree. Intellectual property counterfeiting in the
4 3 third degree is an aggravated misdemeanor.
4 4 If counterfeited items are seized for a violation of this
4 5 bill, the intellectual property owner may request that all
4 6 seized items bearing or identified by a counterfeit mark be
4 7 released by the seizing agency to the intellectual property
4 8 owner for destruction or disposition. If the intellectual
4 9 property owner does not request release of the seized items,
4 10 the items shall be destroyed unless the intellectual property
4 11 owner consents to another disposition. The bill also provides
4 12 that any personal property seized in addition to the
4 13 counterfeited items seized be disposed of pursuant to Code
4 14 chapter 809.
4 15 A class "C" felony is punishable by confinement for no more
4 16 than 10 years and a fine of at least $1,000 but not more than
4 17 $10,000. A class "D" felony is punishable by confinement for
4 18 no more than five years and a fine of at least $750 but not
4 19 more than $7,500. An aggravated misdemeanor is punishable by
4 20 confinement for no more than two years and a fine of at least
4 21 $500 but not more than $5,000.
4 22 LSB 1053DP 80
4 23 jm/pj/5.1
Text: HSB00085 Text: HSB00087 Text: HSB00000 - HSB00099 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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