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Bill 3761

                    Current Status

Bill Number:                      3761
Type of Legislation:              General Bill GB
Introducing Body:                 House
Introduced Date:                  20010321
Primary Sponsor:                  Knotts
All Sponsors:                     Knotts, Whatley, Coates, Keegan, Kelley, 
                                  McGee, Meacham-Richardson, Riser, Sandifer, 
                                  Simrill, Snow, Taylor, White and A. Young
Drafted Document Number:          l:\council\bills\gjk\20365sd01.doc
Residing Body:                    Senate
Date of Last Amendment:           20020606
Subject:                          Counterfeit mark, provisions for what 
                                  constitutes; penalties increased; Banks, 
                                  Consumer Affairs, Crimes and Offenses


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
House   20020606  House insists upon amendment and       98 HCC  Edge
                  Conference Committee appointed                 Cotty
                                                                 Cato
Senate  20020606  Non-concurrence in House amendment
House   20020606  Senate amendments amended,
                  returned to Senate with amendment
Senate  20020605  Amended, read third time, 
                  sent to House
Senate  20020529  Amended, read second time, with notice
                  of general amendments
------  20020529  Scrivener's error corrected
Senate  20020528  Committee report: Favorable with       11 SJ
                  amendment
Senate  20020205  Introduced, read first time,           11 SJ
                  referred to Committee
House   20020201  Read third time, sent to Senate
House   20020131  Read second time, unanimous consent
                  for third reading on the next
                  Legislative day
House   20020130  Committee report: Favorable            25 HJ
House   20010321  Introduced, read first time,           25 HJ
                  referred to Committee


              Versions of This Bill
Revised on January 30, 2002 - Word format
Revised on May 28, 2002 - Word format
Revised on May 29, 2002 - Word format
Revised on May 29, 2002-A - Word format
Revised on June 5, 2002 - Word format
Revised on June 6, 2002 - Word format

Indicates Matter Stricken

Indicates New Matter

AMENDED--NOT PRINTED IN THE HOUSE

Amt. No. 1 (council\nbd\amend\11895ac02)

Amt. No. 2 (council\dka\amend\1378mm02)

June 6, 2002

    H. 3761

Introduced by Reps. Knotts, Whatley, Coates, Keegan, Kelley, McGee, Meacham-Richardson, Riser, Sandifer, Simrill, Snow, Taylor, White and A. Young

S. Printed 6/05/02--S.

Read the first time February 5, 2002.

TO AMEND SECTION 39-15-1190, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE UNLAWFUL USE OF COUNTERFEIT MARKS AND THE PENALTIES THEREFOR, SO AS TO FURTHER PROVIDE FOR WHAT CONSTITUTES A "COUNTERFEIT MARK" AND TO INCREASE THE PENALTIES FOR VIOLATIONS INCLUDING THE ESTABLISHMENT OF CERTAIN FELONIES.

    Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 39-15-1190 of the 1976 Code is amended to read:

    "Section 39-15-1190.    (A)    Whoever intentionally traffics or attempts to traffic in goods or services and knowingly uses or should have known a counterfeit mark on or in connection with such goods or services shall be deemed guilty of a misdemeanor, if an individual, be fined not more than five thousand dollars or imprisoned not more than one year, or both, and, if a person other than an individual, be fined not more than twenty thousand dollars.

    (B)    The term "counterfeit mark" in this section means:

        (1)    a spurious mark:

            (a)    that is used in connection with trafficking goods or services;

            (b)    that is identical with, or substantially indistinguishable from, a mark registered for those goods or services with the Secretary of State under this chapter and in use, whether or not the defendant knew such mark was so registered; and

            (c)    the use of which is likely to cause confusion, to cause mistake, or to deceive.

        (2)    "Counterfeit mark" 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 for designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation.

    (C)    "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.

    (A)    For purposes of this section:

        (1)    'Counterfeit mark' means a mark that:

            (a)    is identical to or substantially indistinguishable from a registered mark or unregistered mark;

            (b)    is used in connection with the sale or offering for sale of goods or services that are identical to or substantially indistinguishable from the goods or services with which the mark is used or registered;

            (c)    if used, is likely to cause confusion, mistake, or deception; and

            (e)    is without authorization of the owner of the registered or unregistered mark.

        (2)    'Registered mark' means a mark that is registered on the principal register of the United States Patent and Trademark Office or with the South Carolina Secretary of State.

        (3)    'Retail sales value' means the value computed by multiplying the number of items having a counterfeit mark used thereon or in connection therewith, by the retail price at which a similar item having a mark used thereon or in connection therewith, the use of which is authorized by the owner, is offered for sale to the public.

        (4)    'Unregistered mark' means symbols, signs, emblems, insignias, trademarks, trade names, or words protected by the federal Amateur Sports Act of 1978 (Title 36 USC Section 380).

    (B)(1)    It is unlawful for any person to knowingly and wilfully use or cause to be used a counterfeit mark on or in connection with goods or services that are intended for sale.

            (a)    A person who violates the provisions of subsection (B)(1) with respect to goods or services having a retail sales value of fifty thousand dollars or less is guilty of the offense of distribution of counterfeit marks and, upon conviction, must be punished as follows:

                (i)     if the goods or services have a retail sales value not exceeding one thousand dollars, the person is guilty of a misdemeanor and must be punished by a fine not exceeding one thousand dollars or by a term of imprisonment not exceeding one year, or both;

                (ii)    if the goods or services have a retail sales value exceeding one thousand dollars but not exceeding ten thousand dollars, the person is guilty of a misdemeanor and must be punished by a fine not exceeding ten thousand dollars or by a term of imprisonment not less than one nor more than two years, or both;

                (iii)    if the goods or services have a retail sales value exceeding ten thousand dollars but not exceeding fifty thousand dollars, the person is guilty of a felony and must be punished by a fine not exceeding twenty thousand dollars or by a term of imprisonment not less than three nor more than five years, or both; and

                (iv)    for a second or subsequent conviction of the offenses described in subsection (B)(1)(a) of this subsection, without regard to the retail sales value of the goods or services, the person is guilty of a felony and must be punished by a fine of not less than one thousand dollars nor more than fifty thousand dollars or by a term of imprisonment of not less than one year nor more than five years, or both.

            (b)    A person who violates the provisions of subsection (B)(1) with respect to goods or services having a retail sales value exceeding fifty thousand dollars is guilty of the offense of trafficking in counterfeit marks. A person who commits the offenses described in this item of this subsection is guilty of a felony and, upon conviction, must be punished as follows:

                (i)     for a first offense, a fine of not less than ten thousand dollars nor more than twenty-five thousand dollars or by a term of imprisonment of not more than five years, or both; and

                (ii)    for a second or subsequent offense, a fine of not less than twenty thousand dollars nor more than fifty thousand dollars or by a term of imprisonment of not less than three years nor more than five years, or both.

        (2)    It is unlawful for any person to possess or have in his custody or control goods that are intended for sale that have a counterfeit mark used thereon or in connection therewith.

            (a)    A person who violates the provisions of subsection (B)(2) with respect to goods or services having a retail sales value of fifty thousand dollars or less is guilty of the offense of possession of counterfeit marks with intent to distribute and, upon conviction, must be punished as follows:

                (i)     if the goods or services have a retail sales value not exceeding one thousand dollars, the person is guilty of a misdemeanor and must be punished by a fine not exceeding one thousand dollars or by a term of imprisonment not exceeding one year, or both;

                (ii)    if the goods or services have a retail sales value exceeding one thousand dollars but not exceeding ten thousand dollars, the person is guilty of a misdemeanor and must be punished by a fine not exceeding ten thousand dollars or by a term of imprisonment not less than one nor more than two years, or both;

                (iii)    if the goods or services have a retail sales value exceeding ten thousand dollars but not exceeding fifty thousand dollars, the person is guilty of a felony and must be punished by a fine not exceeding twenty thousand dollars or by a term of imprisonment not less than three nor more than five years, or both; and

                (iv)    for a second or subsequent conviction of the offenses described in subsection (B)(2)(a) of this subsection, without regard to the retail sales value of the goods or services, the person is guilty of a felony and must be punished by a fine of not less than one thousand dollars nor more than fifty thousand dollars or a term of imprisonment of not less than one year nor more than five years, or both.

            (b)    A person who violates the provisions of subsection (B)(2) with respect to goods or services having a retail sales value exceeding fifty thousand dollars is guilty of the offense of possession of counterfeit marks with intent to traffic. A person who commits the offenses described in this item of this subsection is guilty of a felony and, upon conviction, must be punished as follows:

                (i)     for a first offense, a fine of not less than ten thousand dollars nor more than twenty-five thousand dollars or by a term of imprisonment of not more than five years, or both; and

                (ii)    for a second or subsequent offense, a fine of not less than twenty thousand dollars nor more than fifty thousand dollars or by a term of imprisonment of not less than three years nor more than five years, or both.

    (C)    The possession, custody, or control of more than twenty-five items having a counterfeit mark used thereon or in connection therewith is prima facie evidence that the person having possession, custody, or control of the items intended to sell those items.

    (D)    A person who knowingly:

            (1)    uses any object, tool, machine, or other device to produce or reproduce a counterfeit mark; or

            (2)    has possession, custody, or control of any object, tool, machine, or device with intent to produce or reproduce a counterfeit mark;

    is guilty of a felony and must be punished by a fine not exceeding five thousand dollars or by a term of imprisonment not exceeding five years, or both.

    (E)    Any personal property, including any item, object, tool, machine, or device of any kind, employed as an instrumentality in the commission of or in aiding or abetting in the commission of a violation of this section, is considered contraband and is subject to seizure and forfeiture in the same manner other property may be seized and forfeited if used in the commission of specified criminal offenses as provided by law.

    (F) For purposes of enforcing this section, the Secretary of State's investigators have statewide jurisdiction. These investigators may conduct investigations independently or may assist local law enforcement agencies in their investigations and may initiate and carry out, in coordination with local law enforcement agencies, investigations of violations of this section.

    (G)    The Secretary of State may refer any available evidence concerning violations of this section to the appropriate solicitor who may, with or without such a reference, institute the appropriate criminal proceedings.

    (H)    The Secretary of State also may refer any available evidence concerning violations of this section to the Department of Revenue for purposes of determining the obligations of the violators of this section to state income and taxation laws.

    (I)    The provisions of this section do not apply to persons who own, rent, or manage premises occupied by retailers, unless it is proven that such persons had actual knowledge of and actively participated in a violation under this section."

SECTION    2.    A.        The 1976 Code is amended by adding:

    "Section 27-33-50.    (A)    Unless otherwise agreed in writing, a tenant has sole financial responsibility for gas, electric, water, sewerage, or garbage services provided to the premises the tenant leases, and a landlord is not liable for a tenant's account.

    (B)    An entity or utility providing gas, electric, water, sewerage, or garbage services must not:

        (1)    require a landlord to execute an agreement to be responsible for all charges billed to premises leased by a tenant; or

        (2)    discontinue or refuse to provide services to the premises the tenant leases based on the fact that the landlord refused to execute an agreement to be responsible for all the charges billed to the tenant leasing that premises."

B.     Notwithstanding the general effective date of this act, this section takes effect July 1, 2004.

SECTION    3.    This act takes effect upon approval by the Governor.

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