SENATE, No. 682

STATE OF NEW JERSEY

214th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION

 


 

Sponsored by:

Senator  PAUL A. SARLO

District 36 (Bergen, Essex and Passaic)

Senator  RAYMOND J. LESNIAK

District 20 (Union)

 

 

 

 

SYNOPSIS

     Increases penalties for counterfeiting if the offense creates risk of bodily injury, serious bodily injury or death; creates new offense within Criminal Code of counterfeiting products related to health.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning counterfeiting, amending P.L.1997, c.57, supplementing Title 2C of the New Jersey Statutes, and repealing P.L.1967, c.311.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 1 of P.L.1997, c.57 (C.2C:21-32) is amended to read as follows:

     1.    a.  This act shall be known and may be cited as the "New Jersey Trademark Counterfeiting Act."

     b.    As used in this act:

     (1)   "Counterfeit mark" means a spurious mark that is identical with or substantially indistinguishable from a genuine mark that is registered on the principal register in the United States Patent and Trademark Office or registered in the New Jersey Secretary of State's office or a spurious mark that is identical with or substantially indistinguishable from the words, names, symbols, emblems, signs, insignias or any combination thereof, of the United States Olympic Committee or the International Olympic Committee; and that is used or is intended to be used on, or in conjunction with, goods or services for which the genuine mark is registered and in use.

     (2)   "Retail value" means the counterfeiter's regular selling price for the item or service bearing or identified by the counterfeit mark.  In the case of items bearing a counterfeit mark which are components of a finished product, the retail value shall be the counterfeiter's regular selling price of the finished product on or in which the component would be utilized.

     (3)   “Bodily injury” means “bodily injury” as defined in subsection a. of N.J.S.2C:11-1 or “significant bodily injury” as defined in subsection d. of N.J.S.2C:11-1.

     (4)   “Serious bodily injury” means “serious bodily injury” as defined in subsection b. of N.J.S.2C:11-1.

     c.     A person commits the offense of counterfeiting who, with the intent to deceive or defraud some other person, knowingly manufactures, uses, displays, advertises, distributes, offers for sale, sells, or possesses with intent to sell or distribute within, or in conjunction with commercial activities within New Jersey, any item, or services, bearing, or identified by, a counterfeit mark.

     A person who has in his possession or under his control more than 25 items bearing a counterfeit mark shall be presumed to have violated this section.

     d.    (1) An offense set forth in this act shall be punishable as a crime of the fourth degree if:

     the offense involves fewer than 100 items bearing a counterfeit mark;

     the offense involves a total retail value of less than $1,000.00 for all items bearing, or services identified by, a counterfeit mark; or

     the offense involves a first conviction under this act.

     (2)   An offense set forth in this act shall be punishable as a crime of the third degree if:

     the offense meets the criteria set forth in paragraph (1) of this subsection and creates a reasonably foreseeable risk of causing bodily injury to another;

     the offense involves 100 or more but fewer than 1,000 items bearing a counterfeit mark;

     the offense involves a total retail value of $1,000.00 or more but less than $15,000.00 of all items bearing, or services identified by, a counterfeit mark; or

     the offense involves a second conviction under this act.

     (3)   An offense set forth in this act shall be punishable as a crime of the second degree if:

     the offense meets the criteria set forth in paragraph (1) or (2) of this subsection and creates a reasonably foreseeable risk of causing serious bodily injury to another or death of another;

     the offense involves 1,000 or more items bearing a counterfeit mark;

     the offense involves a total retail value of $15,000.00 or more of all items bearing, or services identified by a counterfeit mark; or

     the offense involves a third or subsequent conviction under this act.

     In addition, any person convicted under this act, notwithstanding the provisions of N.J.S.2C:43-3, shall be fined by the court an amount up to threefold the retail value of the items or services involved, providing that the fine imposed shall not exceed the following amounts: for a crime of the fourth degree, $100,000.00; for a crime of the third degree, $250,000.00; and for a crime of the second degree, $500,000.00.

     e.     All items bearing a counterfeit mark, and all personal property, including but not limited to, any items, objects, tools, machines, equipment, instrumentalities or vehicles of any kind, employed or used in connection with a violation of this act, shall be subject to forfeiture in accordance with the procedures set forth in chapter 64 of Title 2C of the New Jersey Statutes.

     f.     For purposes of this act:

     (1)   the quantity or retail value of items or services shall include the aggregate quantity or retail value of all items bearing, or services identified by, every counterfeit mark the defendant manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses;

     (2)   any State or federal certificate of registration of any intellectual property shall be prima facie evidence of the facts stated therein.

     g.     Conviction for an offense under this act does not preclude the defendant's liability for the civil remedy available pursuant to section 2 of P.L.1987, c.454 (C.56:3-13.16).

(cf: P.L.1999, c.313, s.1)

 

     2.    (New section) For the purpose of this act:

     a.     A  "trademark"  shall be deemed to mean a mark used to indicate the maker, owner or seller of a drug, cosmetic or device and includes, among other things, any name of a person, or corporation, or any letter, word, device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket, stopper, label or  other mark, lawfully adopted by him, and usually affixed to a drug, cosmetic or  device to denote that the same was imported, manufactured, produced, sold,  compounded, bottled, packed, or otherwise prepared by him.

     b.    A trademark shall be  "affixed"  to a drug, cosmetic or device when it is placed in any manner in or upon:

     1.    the drug, cosmetic or device itself;  or,

     2.    a box, bale, barrel, bottle, case, cask, platter, or other vessel or package, or a cover, wrapper, stopper, brand, label, or other thing in, by or with which the drug, cosmetic or device is packed, enclosed or otherwise prepared for sale or disposition.

     c.     A  "drug"  shall be deemed to include (1) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the  United States, or official National Formulary, or any supplement to any of them;  and (2) articles intended for use in the diagnosis, cure, mitigation,  treatment or prevention of disease in man or other animals; and (3) articles  (other than food) intended to affect the structure or any function of the body  of man or other animals;  and (4) articles intended for use as a component of  any article specified in clause (1), (2), or (3); but does not include devices  or their components, parts, or accessories.

     d.    "Cosmetic"  means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of  any such articles;  except that such term shall not include soap.

     e.     "Device"  means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;  or (2) to affect the structure or any function of the body of man or other animals.

     f.     A "counterfeit trademark" is one which is designed to resemble a genuine trademark so as to be likely to induce the belief that it is genuine, whether by the use of words or letters, similar in appearance or in sound, or by any sign, device or other means whatsoever.

 

     3.    (New section) A person who:

     a.     Counterfeits a trademark; or,

     b.    Affixes to any drug, cosmetic or device a counterfeit trademark knowing  the same to be counterfeit, or the genuine trademark of another, without the  latter's consent;  or,

     c.     Knowingly sells, offers for sale, or possesses a drug, cosmetic or device to which is affixed a counterfeit trademark, or the genuine trademark of  another, without the latter's consent;  or,

     d.    Has in his possession or conceals a counterfeit trademark, knowing it to be counterfeit, or a die, punch, plate, brand or other thing for the purpose of counterfeiting a trademark;  or, for the purpose of making the genuine  trademark of another without the latter's consent; or,

     e.     Makes or sells, or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, a drug, cosmetic or device with such a trademark or label as to appear to indicate the place of manufacture or production, or persons manufacturing, packing, bottling, boxing or producing the article, but not indicating it truly;  or,

     f.     Knowingly sells, offers or exposes for sale, or delivers any drug, cosmetic or device which is represented in any manner, by word or deed, to be the manufacture, packing, bottling, boxing or product of any person, firm or corporation, other than himself, without the consent of such other person, firm  or corporation, unless such drug, cosmetic or device is contained in the original package, box or bottle and under the labels, marks or names placed thereon by the manufacturer or other person who is entitled to use such marks, names, brands or trademarks;  or,

     g.     Shall sell or shall expose for sale any drug, cosmetic or device in bulk, to which no label or trademark shall be attached, and shall by representation, name or mark written or printed thereon, represent that such drug, cosmetic or device is the production or manufacture of a person who is not the manufacturer;  or,

     h.     Shall knowingly sell, offer or expose for sale any drug, cosmetic or device, and shall orally or by representation, name or mark written or printed thereon or attached thereto used in connection therewith, or by advertisement, or otherwise, in any manner, whatsoever make any false representation as to the  person by whom such drug, cosmetic or device or the material thereof was made, or was in whole or in part produced, manufactured, finished, processed, treated, marketed, packed, bottled, or boxed or falsely represents that such drug, cosmetic or device or the material or any part thereof has or may properly have any trademark attached to it or used in connection with it, or is  or may properly be indicated or identified by any trademark.

     Is guilty of a crime of the third degree if the offense is committed with regard to a  drug and is guilty of a crime of the fourth degree if the offense is committed with respect to  a cosmetic or device.

 

     4.    (New section)  a.  It is hereby made the duty of the State Department of Health and Senior Services, its officers, agents, inspectors and representatives, and of all peace officers within the State, and of all county prosecutors, to enforce all provisions of this chapter, and to cooperate with all agencies charged with the enforcement of the laws of the United States, of this State, and of all other States, relating to counterfeiting of trademarks used in connection with drugs, cosmetics or devices.

     b.    The commissioner and any officer or employee of the department designated by the commissioner to conduct investigations or engage in other enforcement activities relating to the counterfeiting of drugs, cosmetics or devices shall have the power to execute and serve search warrants and shall have the power of arrest in cases of violation of this chapter, and may, in the  discharge of their duties, call in the aid of a constable, sheriff, or other  peace officer when deemed necessary.

 

     5.    P.L.1967, c.311 (C.24:6D-1 et seq.)  is repealed.

 

     6.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would enhance the criminal penalties for the crime of counterfeiting if the offense creates a reasonably foreseeable risk of causing bodily injury or serious bodily injury to another or death of another.

     The New Jersey Trademark Counterfeit Act prohibits the intentional manufacture, use, display, advertisement, distribution, sale or possession with intent to sell goods or services bearing or identified by a counterfeit mark.  Under the act, counterfeiting is a crime of the fourth degree if the offense involves fewer than 100 items bearing a counterfeit mark, the offense involves a total retail value of less than $1,000, or the offense is a first conviction.  A crime of the fourth degree ordinarily is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both. 

     Counterfeiting is a crime of the third degree if the offense involves 100 or more but fewer than 1,000 items bearing a counterfeit mark, the offense involves a retail value of $1,000 to $15,000, or the offense is a second conviction.  A crime of the third degree ordinarily is punishable by a specific term of imprisonment between three to five years, a fine of up to $15,000, or both.

     Counterfeiting is a crime of the second degree if the offense involves 1,000 or more items bearing a counterfeit mark, the offense involves a retail value of $15,000 or more, or the offense is a third or subsequent conviction. A crime of the second degree ordinarily is punishable by a specific term of imprisonment between five and 10 years, a fine of up to $150,000, or both.

     This bill would upgrade an offense that meets the criteria for a fourth degree crime to a crime of the third degree if the offense creates a reasonably foreseeable risk of causing bodily injury to another.  Also, the bill would upgrade an offense that meets the criteria for a fourth or third degree crime to a crime of the second degree if the offense creates a reasonably foreseeable risk of causing serious bodily injury to another or death of another.  The bill replaces the phrase “poses a threat to the health, safety, or welfare of any member of the public.”  The bill also creates the possibility of upgrading a fourth degree crime to a second degree crime if the offense creates a reasonably foreseeable risk of causing serious bodily injury to another or death of another.  The bill also upgraded fourth degree crimes to third degree and third degree to second degree if the offense posed certain threats.

       The bill also repeals P.L.1967, c.311 (C.24:6D-1 et seq.), which makes the production, possession and sale of counterfeit drugs and cosmetics a high misdemeanor.  The bill re-inserts these provisions into the criminal code with only minor changes: replacing the terms “high misdemeanor” and “misdemeanor” with their equivalents of the criminal code.  In accordance with N.J.S.A.1:1-15, the repeal of P.L.1967, c.311 is not intended to in any way limit criminal liability for acts committed prior to the effective date of this bill.