[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1136 Enrolled Bill (ENR)]
S.1136
One Hundred Fourth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday,
the third day of January, one thousand nine hundred and ninety-six
An Act
To control and prevent commercial counterfeiting, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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This Act may be cited as the ``Anticounterfeiting Consumer
Protection Act of 1996''.

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The counterfeiting of trademarked and copyrighted merchandise--
(1) has been connected with organized crime;
(2) deprives legitimate trademark and copyright owners of
substantial revenues and consumer goodwill;
(3) poses health and safety threats to United States consumers;
(4) eliminates United States jobs; and
(5) is a multibillion-dollar drain on the United States
economy.

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Section 1961(1)(B) of title 18, United States Code, is amended by
inserting ``, section 2318 (relating to trafficking in counterfeit
labels for phonorecords, computer programs or computer program
documentation or packaging and copies of motion pictures or other
audiovisual works), section 2319 (relating to criminal infringement of
a copyright), section 2319A (relating to unauthorized fixation of and
trafficking in sound recordings and music videos of live musical
performances), section 2320 (relating to trafficking in goods or
services bearing counterfeit marks)'' after ``sections 2314 and 2315
(relating to interstate transportation of stolen property)''.

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DOCUMENTATION, OR PACKAGING.
(a) In General.--Section 2318 of title 18, United States Code, is
amended--
(1) in subsection (a), by striking ``a motion picture or other
audiovisual work,'' and inserting ``a computer program or
documentation or packaging for a computer program, or a copy of a
motion picture or other audiovisual work, and whoever, in any of
the circumstances described in subsection (c) of this section,
knowingly traffics in counterfeit documentation or packaging for a
computer program,'';
(2) in subsection (b)(3) by inserting ```computer program',''
after ```motion picture',''; and
(3) in subsection (c)--
(A) by striking ``or'' at the end of paragraph (2);
(B) in paragraph (3)--
(i) by inserting ``a copy of a copyrighted computer
program or copyrighted documentation or packaging for a
computer program,'' after ``enclose,''; and
(ii) by striking the period at the end and inserting
``; or''; and
(C) by adding after paragraph (3) the following:
``(4) the counterfeited documentation or packaging for a
computer program is copyrighted.''.
(b) Conforming Amendments.--(1) The section caption for section
2318 of title 18, United States Code, is amended to read as follows:
``Sec. 2318. Trafficking in counterfeit labels for phonorecords, copies
of computer programs or computer program documentation or
packaging, and copies of motion pictures or other audio
visual works, and trafficking in counterfeit computer
program documentation or packaging''.
(2) The item relating to section 2318 in the table of sections for
chapter 113 of such title is amended to read as follows:
``2318. Trafficking in counterfeit labels for phonorecords, copies of
computer programs or computer program documentation or
packaging, and copies of motion pictures or other audio visual
works, and trafficking in counterfeit computer program
documentation or packaging.''.

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Section 2320 of title 18, United States Code, is amended by adding
at the end the following:
``(e) 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.''.

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Section 34(d)(9) of the Act of July 5, 1946 (60 Stat. 427, chapter
540; 15 U.S.C. 1116(d)(9)), is amended by striking the first sentence
and inserting the following: ``The court shall order that service of a
copy of the order under this subsection shall be made by a Federal law
enforcement officer (such as a United States marshal or an officer or
agent of the United States Customs Service, Secret Service, Federal
Bureau of Investigation, or Post Office) or may be made by a State or
local law enforcement officer, who, upon making service, shall carry
out the seizure under the order.''.

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Section 35 of the Act of July 5, 1946 (60 Stat. 427, chapter 540;
15 U.S.C. 1117), is amended by adding at the end the following new
subsection:
``(c) In a case involving the use of a counterfeit mark (as defined
in section 34(d) (15 U.S.C. 1116(d)) in connection with the sale,
offering for sale, or distribution of goods or services, the plaintiff
may elect, at any time before final judgment is rendered by the trial
court, to recover, instead of actual damages and profits under
subsection (a), an award of statutory damages for any such use in
connection with the sale, offering for sale, or distribution of goods
or services in the amount of--
``(1) not less than $500 or more than $100,000 per counterfeit
mark per type of goods or services sold, offered for sale, or
distributed, as the court considers just; or
``(2) if the court finds that the use of the counterfeit mark
was willful, not more than $1,000,000 per counterfeit mark per type
of goods or services sold, offered for sale, or distributed, as the
court considers just.''.

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Section 603(c) of title 17, United States Code, is amended in the
second sentence by striking ``as the case may be;'' and all that
follows through the end and inserting ``as the case may be.''.

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Section 526(e) of the Tariff Act of 1930 (19 U.S.C. 1526(e)) is
amended--
(1) in the second sentence, by inserting ``destroy the
merchandise. Alternatively, if the merchandise is not unsafe or a
hazard to health, and the Secretary has the consent of the
trademark owner, the Secretary may'' after ``shall, after
forfeiture,'';
(2) by inserting ``or'' at the end of paragraph (2);
(3) by striking ``, or'' at the end of paragraph (3) and
inserting a period; and
(4) by striking paragraph (4).

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Section 526 of the Tariff Act of 1930 (19 U.S.C. 1526) is amended
by adding at the end the following new subsection:
``(f) Civil Penalties.--(1) Any person who directs, assists
financially or otherwise, or aids and abets the importation of
merchandise for sale or public distribution that is seized under
subsection (e) shall be subject to a civil fine.
``(2) For the first such seizure, the fine shall be not more than
the value that the merchandise would have had if it were genuine,
according to the manufacturer's suggested retail price, determined
under regulations promulgated by the Secretary.
``(3) For the second seizure and thereafter, the fine shall be not
more than twice the value that the merchandise would have had if it
were genuine, as determined under regulations promulgated by the
Secretary.
``(4) The imposition of a fine under this subsection shall be
within the discretion of the Customs Service, and shall be in addition
to any other civil or criminal penalty or other remedy authorized by
law.''.

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Section 431(c)(1) of the Tariff Act of 1930 (19 U.S.C. 1431(c)(1))
is amended--
(1) in the matter preceding subparagraph (A), by inserting
``vessel or aircraft'' before ``manifest'';
(2) by amending subparagraph (D) to read as follows:
``(D) The name of the vessel, aircraft, or carrier.'';
(3) by amending subparagraph (E) to read as follows:
``(E) The seaport or airport of loading.'';
(4) by amending subparagraph (F) to read as follows:
``(F) The seaport or airport of discharge.''; and
(5) by adding after subparagraph (G) the following new
subparagraph:
``(H) The trademarks appearing on the goods or packages.''.

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Section 484(d) of the Tariff Act of 1930 (19 U.S.C. 1484(d)) is
amended--
(1) by striking ``Entries'' and inserting ``(1) Entries''; and
(2) by adding at the end the following new paragraph:
``(2) The Secretary, in prescribing regulations governing the
content of entry documentation, shall require that entry documentation
contain such information as may be necessary to determine whether the
imported merchandise bears an infringing trademark in violation of
section 42 of the Act of July 5, 1946 (commonly referred to as the
`Trademark Act of 1946'; 15 U.S.C. 1124), or any other applicable law,
including a trademark appearing on the goods or packaging.''.

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COMMERCIAL COUNTERFEITING.
Section 80302(a) of title 49, United States Code, is amended--
(1) by striking ``or'' at the end of paragraph (4);
(2) by striking the period at the end of paragraph (5) and
inserting ``; or''; and
(3) by adding at the end the following new paragraph:
``(6)(A) a counterfeit label for a phonorecord, copy of a
computer program or computer program documentation or packaging, or
copy of a motion picture or other audiovisual work (as defined in
section 2318 of title 18);
``(B) a phonorecord or copy in violation of section 2319 of
title 18;
``(C) a fixation of a sound recording or music video of a live
musical performance in violation of section 2319A of title 18; or
``(D) any good bearing a counterfeit mark (as defined in
section 2320 of title 18).''.

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Not later than 6 months after the date of the enactment of this
Act, the Secretary of the Treasury shall prescribe such regulations or
amendments to existing regulations that may be necessary to carry out
the amendments made by sections 9, 10, 11, 12, and 13 of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

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Anticounterfeiting Consumer Protection Act of 1996 — S. 1136

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