Senate Bill No. 264
(By Senator Green)
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[Introduced February 16, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto two new sections, designated §61-3-59 and §61-
3-59a, all relating to the sale of goods or services with
counterfeit mark; production or reproduction of counterfeit
mark; and penalties, including seizure and forfeiture of
counterfeit marks.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended,
by adding thereto two new sections, designated §61-3-59 and §61-3-
59a, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-59. Sale of goods or services with counterfeit mark;
production or reproduction of counterfeit mark;
penalties.
As used in this section:
(a) "Counterfeit mark" means a mark that is:
(1) Identical to, or substantially indistinguishable from, a
registered mark or unregistered mark.
(2) 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;
(3) Likely to cause confusion, mistake, or deception if used;
and
(4) Not authorized by the owner of the registered or
unregistered mark.
(b) "Registered mark" means a mark that is registered on the
principal register of the United States Patent and Trademark Office
or with the West Virginia Secretary of State.
(c) "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.
(d) "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.
(e) 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.
(1) A person who knowingly and willfully violates this
subsection with respect to goods or services having a retail sales
value of less than $50,000 is guilty of the offense of distribution
of counterfeit marks thereof and, upon conviction, shall be
punished as follows:
(A) If the goods or services have a retail sales value of
$2,000 or less, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000 or confined
in jail not more than one year, or both fined and confined;
(B) If the goods or services have a retail sales value of more
than $2,000 but less than $10,000, the person is guilty of a
felony, and upon conviction thereof, shall be fined not more than
$10,000 or imprisoned in a state correctional facility not more
than three years, or both fined and imprisoned;
(C) If the goods or services have a retail sales value of
$10,000 or more, but less than $50,000, the person is guilty of a
felony, and upon conviction thereof, shall be fined not more than
$20,000 or imprisoned in a state correctional facility not more
than five years, or both fined and imprisoned;
(D) For a second or subsequent conviction of the offenses described in subsection (e), without regard to the retail sales
value of the goods or services, the person is guilty of a felony,
and upon conviction thereof, shall be fined not less than $1,000 or
more than $50,000 or imprisoned in a state correctional facility
not more than ten years, or both fined and imprisoned.
(2) A person who knowingly and willfully violates this
subsection with respect to goods or services having a retail sales
value of $50,000 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 subsection is
guilty of a felony and, upon conviction thereof, shall be punished
as follows:
(A) For a first offense, upon conviction thereof, shall be
fined not less than $10,000 or more than $25,000 or imprisoned in
a state correctional facility not more than five years, or both
fined and imprisoned;
(B) For a second or subsequent offense, upon conviction
thereof, shall be fined not less than $20,000 or more than $50,000
or imprisoned in a state correctional facility not more than ten
years, or both fined and imprisoned.
(f) 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.
(g) 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
thereof, shall be punished as provided in subsection (e).
(h) 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 subsection (e) or (g), 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.
(1) 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.
(2) The Secretary of State may refer available evidence
concerning violations of this section to the appropriate
prosecuting attorney who may, with or without the reference, institute the appropriate criminal proceedings.
(3) The Secretary of State also may refer available evidence
concerning violations of this section to the West Virginia State
Tax Department for purposes of determining the obligations of the
violators of this section pursuant to state income and other
taxation laws.
(4) This section does 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.
§61-3-59a. Seizure and forfeiture of counterfeit marks; storage
and maintenance of seized property; reports to
prosecuting agencies; return of seized items.
(a) The following property is subject to seizure by and
forfeiture to any law-enforcement agency upon violation of section
fifty-nine of this article:
(1) All items bearing the counterfeit mark;
(2) All personal property that is employed or used in
connection with a violation of section fifty-nine of this article
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 moneys, 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 fifty-nine of this
article.
(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
fifty-nine, article three, chapter sixty-one.
(c) If a seizure is made pursuant to subsection (b),
proceedings 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. Moneys seized must be deposited in an interest
bearing account pending final disposition by the court unless the
seizing agency determines the moneys to be of an evidentiary nature
and provides for security in another manner.
(g) When property, conveyances, moneys, negotiable
instruments, securities, or anything else of value is seized
pursuant to 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:
(A) Description;
(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.
(h) In addition to the report provided for in subsection
(g)(1) and (g)(2), the law-enforcement agency shall prepare for
dissemination to the public, upon request, a report providing the
following information:
(1) A description of the quantity and nature of the property
and money seized;
(2) The seizing agency;
(3) The make, model, and year of a conveyance; and
(4) The law-enforcement agency responsible for the property or
conveyance seized.
(i) An owner may apply to the circuit court for the return of
an item seized pursuant to this section. 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. If the
court denies the application, the hearing may proceed as a
forfeiture hearing.
(j) 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.
(k) 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.
(l) Property or conveyances seized by a law-enforcement agency
or department must not be used by officers for personal purposes.
NOTE: The purpose of this bill is to prohibit the sale of
goods or services with counterfeit mark, production or reproduction
of counterfeit mark, and also prescribes penalties, including
seizure and forfeiture of the counterfeit mark.
This section is new; therefore, strike-throughs and underscoring
have been omitted.