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Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT AMENDED AND ADOPTED
S. Printed 5/3/16--S.
Read the first time May 10, 2005.
TO AMEND SECTION 39-15-1190, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE UNLAWFUL USE OF COUNTERFEIT MARKS, SO AS TO FURTHER DEFINE A "COUNTERFEIT MARK", TO ESTABLISH FELONIES FOR THE USE OF, TRAFFICKING IN, AND PRODUCTION OF A COUNTERFEIT MARK, TO PROVIDE FOR SEIZURE AND SALE OF ITEMS IN CONNECTION WITH THE USE OF A COUNTERFEIT MARK, AND TO PROVIDE FOR INVESTIGATORY POWERS OF THE SECRETARY OF STATE.
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, as added by Act 486 of 1994, is further amended to read:
(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 is:
(a) identical to, or substantially indistinguishable from, a registered mark or unregistered mark;
(b) 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 registered or unregistered mark is identified;
(c) likely to cause confusion, mistake, or deception if used; and
(d) not authorized by 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 on them or in connection with them by the retail price at which a similar item having a mark used on it or in connection with it, the use of which is authorized by the owner, is offered for sale to the public.
(4) 'Unregistered mark' means a symbol, sign, emblem, insignia, trademark, trade name, or word protected by the federal Amateur Sports Act of 1978, Title 36 U.S.C. Section 380.
(B)(1) It is unlawful for a person knowingly and willfully to transport, transfer, distribute, sell, or otherwise dispose of, or to possess with intent to transfer, transport, distribute, sell, or otherwise dispose of, an item having a counterfeit mark on it or in connection with it.
(a) A person who knowingly and willfully violates this subsection with respect to goods or services having a retail sales value of less than fifty thousand dollars 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 of two thousand dollars or less, the person is guilty of a misdemeanor and must be fined not more than one thousand dollars or imprisoned not more than one year, or both;
(ii) if the goods or services have a retail sales value of more than two thousand dollars but less than ten thousand dollars, the person is guilty of a felony and must be fined not more than ten thousand dollars or imprisoned not more than three years, or both;
(iii) if the goods or services have a retail sales value of ten thousand dollars or more, but less than fifty thousand dollars, the person is guilty of a felony and must be fined not more than twenty thousand dollars or imprisoned not more than five years, or both;
(iv) for a second or subsequent conviction of the offenses described in subitem (a), without regard to the retail sales value of the goods or services, the person is guilty of a felony and must be fined not less than one thousand dollars or more than fifty thousand dollars or imprisoned not more than ten years, or both.
(b) A person who knowingly and willfully violates the provisions of this subsection with respect to goods or services having a retail sales value of fifty thousand dollars or more is guilty of the offense of trafficking in counterfeit marks. A person who knowingly and willfully commits the offense of trafficking as described in this subitem is guilty of a felony and, upon conviction, must be punished as follows:
(i) for a first offense, fined not less than ten thousand dollars or more than twenty-five thousand dollars or imprisoned not more than five years, or both;
(ii) for a second or subsequent offense, fined not less than twenty thousand dollars or more than fifty thousand dollars or imprisoned not more than ten years, or both.
(2) The possession, custody, or control of more than twenty-five items having a counterfeit mark used on them or in connection with them is prima facie evidence of a violation of this section.
(C) A person who knowingly and willfully uses any object, tool, machine, or other device to produce or reproduce a counterfeit mark or knowingly and willfully has possession, custody, or control of any object, tool, machine, or device with intent to produce or reproduce a counterfeit mark is guilty of producing or reproducing counterfeit marks and, upon conviction, must be punished as provided in subsection (B).
(D) 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 subsections (B) or (C), is considered contraband and is subject to seizure and forfeiture in the same manner as other property used in the commission of specified criminal offenses as provided by law.
(E) For purposes of enforcing this section, investigators in the office of the Secretary of State 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.
(F) The Secretary of State may refer available evidence concerning violations of this section to the appropriate solicitor who may, with or without the reference, institute the appropriate criminal proceedings.
(G) The Secretary of State also may refer available evidence concerning violations of this section to the Department of Revenue for purposes of determining the obligations of the violators of this section pursuant to state income and other taxation laws.
(H) The provisions of this section do not apply to persons who own, rent, or manage premises occupied by retailers unless that person had actual knowledge or actively participated in a violation of this section."
SECTION 2. Chapter 15, Title 39 of the 1976 Code is amended by adding:
"Section 39-15-1195. (A) The following property is subject to seizure by and forfeiture to any law enforcement agency upon violation of Section 39-15-1190:
(1) all items bearing the counterfeit mark;
(2) all personal property that is employed or used in connection with a violation of Section 39-15-1190 including, but not limited to, any items, objects, tools, machines, equipment, or instrumentalities of any kind;
(3) all conveyances including, but not limited to, trailers, aircraft, motor vehicles, and watergoing vessels which are used unlawfully to conceal, contain, or transport or facilitate the unlawful concealment, possession, containment, manufacture, or transportation of counterfeit marks;
(4) all books, records, computers, and data that are used or intended for use in the production, manufacture, sale, or delivery of items bearing a counterfeit mark or services identified by a counterfeit mark; and
(5) all monies, negotiable instruments, balances in deposit or other accounts, securities, or other things of value furnished or intended to be furnished by any person used to engage in a violation or to further a violation of Section 39-15-1190.
(B) Property subject to forfeiture pursuant to this section may be seized by the department having authority upon a warrant issued by a court having jurisdiction over the property. Seizure without process may be made if:
(1) the seizure is incident to an arrest or a search pursuant to a search warrant or an inspection pursuant to an administrative inspection warrant;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding based upon this section;
(3) the department has probable cause to believe that the property is directly or indirectly dangerous to an individual's health or safety; or
(4) the department has probable cause to believe that the property was used or is intended to be used in violation of Section 39-15-1190.
(C) If a seizure is made pursuant to subsection (B), proceedings pursuant to Section 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time.
(D) Property taken or detained pursuant to this section is not subject to replevin but is considered to be in the custody of the department making the seizure, subject only to the orders of the court having jurisdiction over the forfeiture proceedings.
(E) For the purposes of this section, when the seizure of property subject to seizure is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.
(F) Law enforcement agencies seizing property pursuant to this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidentiary nature and provides for security in another manner.
(G) When property, conveyances, monies, negotiable instruments, securities, or anything else of value is seized pursuant to the provisions of subsection (A), the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, shall submit a report to the appropriate prosecution agency.
(1) The report must provide the following information with respect to the property seized:
(b) circumstances of seizure;
(c) present custodian and where the property is being stored or its location;
(d) name of owner;
(e) name of lienholder, if any; and
(f) seizing agency.
(2) If the property is a conveyance, the report must include the:
(a) make, model, serial number, and year of the conveyance;
(b) person in whose name the conveyance is registered; and
(c) name of any lienholders.
(3) In addition to the report provided for in items (1) and (2), the law enforcement agency shall prepare for dissemination to the public upon request a report providing the following information:
(a) a description of the quantity and nature of the property and money seized;
(b) the seizing agency;
(c) the make, model, and year of a conveyance; and
(d) the law enforcement agency responsible for the property or conveyance seized.
(H)(1) An owner may apply to the court of common pleas for the return of an item seized pursuant to the provisions of this chapter. Notice of hearing or rule to show cause accompanied by a copy of the application must be directed to all persons and agencies entitled to notice as provided in Section 44-53-530. If the court denies the application, the hearing may proceed as a forfeiture hearing held pursuant to the provisions of Section 44-53-530.
(2) The court may return a seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence that the owner was not a consenting party to, or privy to, or did not have knowledge of, the use of the property that made it subject to seizure and forfeiture.
(3) The lien of an innocent person or other legal entity, recorded in public records, continues in force upon transfer of title of a forfeited item, and a transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that the lienholder was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture.
(I) Property or conveyances seized by a law enforcement agency or department must not be used by officers for personal purposes."
SECTION 3. This act takes effect upon approval by the Governor.
This web page was last updated on Tuesday, June 23, 2009 at 2:16 P.M.