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REFERENCE TITLE: counterfeit marks; intellectual property |
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State of Arizona Senate Forty-eighth Legislature Second Regular Session 2008
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SB 1038 |
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Introduced by Senator Harper
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AN ACT
amending section 44-1453, Arizona Revised Statutes; relating to the registration and protection of trademarks and service marks.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 44-1453, Arizona Revised Statutes, is amended to read:
44-1453. Counterfeit marks; violation; classification; presumption; seizure; forfeiture; remedies; definitions
A. Except as provided in subsections B, and C and D, a person who knowingly and with intent to sell or distribute uses, displays, advertises, distributes, offers for sale, sells or possesses any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 1 misdemeanor.
B. A person who commits any act proscribed in subsection A is guilty of a class 6 felony if either:
1. The person has one previous conviction under this section.
2. At least one of the following is true:
(a) The violation involves more than one hundred but fewer than one thousand items that bear the counterfeit mark.
(b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is more than one thousand dollars but less than ten thousand dollars.
C. A person who knowingly manufactures or produces with intent to sell or distribute any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 5 felony.
D. A person who commits any act proscribed by subsection A is guilty of a class 5 felony if either:
1. The person has two or more previous convictions under this section.
2. At least one of the following is true:
(a) The violation involves at least one thousand items that bear the counterfeit mark.
(b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is at least ten thousand dollars.
E. A person who knowingly has possession, custody or control of at least twenty-six items that bear a counterfeit mark is presumed to possess the items with intent to sell or distribute the items.
F. In any criminal proceeding in which a person is convicted of a violation of this section, the court may order the convicted person to pay restitution to the intellectual property owner.
G. A law enforcement officer may seize any item that bears a counterfeit mark and all other personal property that is employed or used in connection with a violation of this section, including any items, objects, tools, machines, equipment, instrumentalities or vehicles. All personal property seized pursuant to this section shall be forfeited pursuant to title 13, chapter 39.
H. After a disposition or final judgment, on the request of the intellectual property owner, a law enforcement officer shall release all seized items that bear a counterfeit mark to the intellectual property owner for destruction or disposition. If the intellectual property owner does not request the release of the seized items that bear a counterfeit mark, the law enforcement officer shall destroy the items unless the intellectual property owner consents to another form of disposition.
I. Any certificate of registration pursuant to this article or federal law of any intellectual property is prima facie evidence of the facts stated in the certificate of registration.
J. In addition to the remedies provided in section 44-1451, an intellectual property owner who sustains a loss as a result of a violation of this section may file an action in superior court for recovery of up to treble damages and the costs of the suit including reasonable attorney fees.
K. The remedies provided in this section are cumulative to all other civil and criminal remedies provided by law.
L. For the purposes of this section, the quantity or retail value of items or services includes the aggregate quantity or retail value of all items that the defendant manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses and that bear a counterfeit mark or that are identified by a counterfeit mark.
M. For the purposes of this section:
1. "Counterfeit mark" means:
(a) Any unauthorized reproduction or copy of intellectual property.
(b) Intellectual property that is affixed to any item that is knowingly sold, offered for sale, manufactured or distributed or to any identifying services offered or rendered without the authority of the intellectual property owner.
2. "Intellectual property" means any trademark, service mark, trade name, label, term, device, design or word that is adopted or used by a person to identify that person's goods or services.
3. "Item" includes:
(a) any component that is designed, marketed or otherwise intended to be used on or in connection with any goods or services.
(b) Any component of a finished product.
3. 4. "Retail value" means:
(a) For items that bear a counterfeit mark and that are components of a finished product, the counterfeiter’s regular selling price of the finished product on or in which the component would be utilized.
(b) For all other items that bear a counterfeit mark or services that are identified by a counterfeit mark, the counterfeiter’s regular selling price for those items or services.