Full Text of SB1631 96th General Assembly
SB1631enr 96TH GENERAL ASSEMBLY
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| AN ACT concerning property.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Counterfeit Trademark Act is amended by | 5 |
| changing Sections 1, 2, 3, 8, and 9 as follows:
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| (765 ILCS 1040/1) (from Ch. 140, par. 23)
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| Sec. 1.
For the purposes of this Act, unless otherwise | 8 |
| required by the
context:
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| "Counterfeit item" means any goods, components of goods, or | 10 |
| services made,
produced, or knowingly sold or knowingly | 11 |
| distributed that use or display a
counterfeit mark trade mark, | 12 |
| trade name, or service mark that is a spurious mark identical | 13 |
| with
or substantially indistinguishable from the registered | 14 |
| mark as registered with
the United States Patent and Trademark | 15 |
| Office .
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| "Counterfeit mark" means a spurious mark: | 17 |
| (1) That is applied to or used in connection with any | 18 |
| goods, services, labels, patches, fabric, stickers, | 19 |
| wrappers, badges, emblems, medallions, charms, boxes, | 20 |
| containers, cans, cases, hangtags, documentation, or | 21 |
| packaging or any other components of any type or nature | 22 |
| that are designed, marketed, or otherwise intended to be | 23 |
| used on or in connection with any goods or services; |
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| (2) That is identical with, or substantially | 2 |
| indistinguishable from, a mark registered in this State, | 3 |
| any state, or on the principal register in the United | 4 |
| States Patent and Trademark Office and in use, whether or | 5 |
| not the defendant knew such mark was so registered; and | 6 |
| (3) The application or use of which either (i) is | 7 |
| likely to cause confusion, to cause mistake, or to deceive; | 8 |
| or (ii) otherwise intended to be used on or in connection | 9 |
| with the goods or services for which the mark is | 10 |
| registered. | 11 |
| "Mark" includes any trade-mark or service mark whether | 12 |
| registered or
not. "Trade-mark" means anything adopted and used | 13 |
| by a person to identify
goods made, sold, produced or | 14 |
| distributed by him or her or with his or her
authorization
and | 15 |
| which distinguishes them from goods made, sold, produced or | 16 |
| distributed
by others and registered in this State, any state, | 17 |
| or on the principal register in the United States Patent and | 18 |
| Trademark Office . | 19 |
| "Service mark" means anything adopted and used by a person | 20 |
| to
identify services rendered by him or her or with his or her | 21 |
| authorization and
that
distinguishes them from services | 22 |
| rendered by others.
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| "Person" means any individual, firm, partnership, | 24 |
| corporation,
association, union or other organization.
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| A mark shall be deemed to be "used" (1) in the case of a | 26 |
| trade-mark,
when it is placed in any manner on the goods, in or |
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| on any container for
the goods, on the tags or labels affixed | 2 |
| to the goods or containers, or is
displayed in physical | 3 |
| association with the goods in the sale or
distribution thereof, | 4 |
| or (2) in the case of a service mark, if it
identifies a | 5 |
| service, even though the service may be rendered in connection
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| with the sale or distribution of goods of the owner of the | 7 |
| mark. A mark
shall be deemed to be "used in this State" (1) in | 8 |
| the case of a trade-mark
when it is used on goods which are | 9 |
| sold or otherwise distributed in this
State, or (2) in the case | 10 |
| of a service mark if the service identified by
the mark is | 11 |
| rendered or received in this State.
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| "Trade-name" includes individual names and surnames, firm | 13 |
| names and
corporate names used by manufacturers, | 14 |
| industrialists, merchants,
agriculturists, and others to | 15 |
| identify their businesses, vocations, or
occupations; the | 16 |
| names or titles lawfully adopted and used by persons,
firms, | 17 |
| associations, corporations, companies, unions, and any
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| manufacturing, industrial, commercial, agricultural, or other | 19 |
| organizations
engaged in trade or commerce and capable of suing | 20 |
| and being sued in a court
of law.
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| "Retail value" means: | 22 |
| (1) The counterfeiter's per unit regular price for the | 23 |
| counterfeit item, unless the counterfeit item would appear | 24 |
| to a reasonably prudent person to be authentic, then the | 25 |
| retail value shall be the price of the authentic | 26 |
| counterpart; or if no authentic reasonably similar |
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| counterpart exists, then the retail value shall remain the | 2 |
| counterfeiter's per unit regular sale price for the | 3 |
| counterfeit item. | 4 |
| (2) In the case of labels, patches, stickers, wrappers, | 5 |
| badges, emblems, medallions, charms, boxes, containers, | 6 |
| cans, cases, hangtags, documentation, or packaging or any | 7 |
| other components of any type or nature that are designed, | 8 |
| marketed, or otherwise intended to be used on or in | 9 |
| connection with any counterfeit item, the retail value | 10 |
| shall be treated as if each component was a finished good | 11 |
| and valued as detailed in paragraph (1) above. | 12 |
| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/2) (from Ch. 140, par. 24)
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| Sec. 2.
Whoever uses a counterfeit mark counterfeits or | 15 |
| imitates any
trade-mark or service mark
of which he or she is | 16 |
| not
the rightful owner or in any way utters or circulates any | 17 |
| counterfeit or
imitation of such a trade-mark or service mark | 18 |
| or knowingly uses such
counterfeit or
imitation or knowingly | 19 |
| sells or disposes of or keeps or has in his or her
possession, | 20 |
| with intent that the same shall be sold or disposed of, any
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| goods, wares, merchandise, or other product of labor or | 22 |
| service, to which
any such
counterfeit or imitation is attached | 23 |
| or affixed, or on which any such
counterfeit or imitation is | 24 |
| printed, painted, stamped or impressed, or
knowingly sells or | 25 |
| disposes of any goods, wares, merchandise or other
product of |
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| labor contained in any box, case, can, or package to
which or | 2 |
| on
which any such counterfeit or imitation is attached, | 3 |
| affixed, printed,
painted, stamped or impressed, or keeps or | 4 |
| has in his possession with
intent that the same shall be sold | 5 |
| or disposed of, any goods, wares,
merchandise or other product | 6 |
| of labor in any box, case, can or
package to
which or on which | 7 |
| any such counterfeit, or imitation is attached, affixed,
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| printed, painted, stamped or impressed or knowingly sells a | 9 |
| service using a
counterfeit service mark, shall be guilty of a | 10 |
| Class A
misdemeanor for each offense, or in the case of a | 11 |
| counterfeit item shall be
punished
as provided in Section 8.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/3) (from Ch. 140, par. 25)
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| Sec. 3.
Every person who shall knowingly use a counterfeit | 15 |
| mark or display a trade-mark,
trade name, or service mark of | 16 |
| which he or she is not the lawful owner
in any manner not | 17 |
| authorized
by such owner, whether or not the unauthorized use | 18 |
| creates a likelihood of
confusion or misunderstanding, (a) in | 19 |
| the sale of goods or services
produced by the
owner, but with | 20 |
| alterations in packaging or labeling, or (b) in the sale of
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| goods or services produced by the owner but in a packaging form | 22 |
| not
intended by him for
such sale, or (c) in the packaging or | 23 |
| labeling of goods or services not
produced by the
owner, if the | 24 |
| trade-mark, trade name, or service mark of the
owner is used | 25 |
| for the purpose
or with the effect of exploiting or impairing |
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| the owner's good will or as a
means of representing a quality, | 2 |
| property or characteristic of the goods or
services
being sold, | 3 |
| other than the utility of the goods or services in the repair
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| of or as a
replacement of a component of the product of the | 5 |
| owner and the trade-mark, trade name, or service mark is used | 6 |
| in a non-misleading manner
solely to indicate such
utility, | 7 |
| shall be deemed guilty of a Class A misdemeanor, or in the case | 8 |
| of a
counterfeit item shall be punished as provided in Section | 9 |
| 8. In all cases
where such owner is an incorporated association | 10 |
| or union, suits under this
Act may be commenced and prosecuted | 11 |
| by any officer or member of such
association or union on behalf | 12 |
| of and for the use of such association or
union.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/8)
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| Sec. 8. Sentence.
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| (a) A person who knowingly sells, offers for sale, holds | 17 |
| for sale, or
uses fewer than 100 counterfeit items or | 18 |
| counterfeit items having a retail
value in the aggregate of | 19 |
| $300 $1,000 or less is guilty of a Class A misdemeanor
and | 20 |
| shall be fined at least 25% of the retail value of all | 21 |
| counterfeit items
but no more than $1,000, except as follows | 22 |
| that : | 23 |
| (1) A person who has a prior conviction for a
violation | 24 |
| of this Act within the preceding 5 years is guilty of a | 25 |
| Class 4
felony and shall be fined at least 50% 25% but no |
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| more than 100% of the retail
value of all counterfeit | 2 |
| items.
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| (2) A person who, as a result of the offense, causes
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| bodily harm to another is guilty of a Class 3 felony and | 5 |
| shall be fined at least 50% but no more than 100% of the | 6 |
| retail value of all counterfeit items. | 7 |
| (3) A person who, as a result of the offense, causes
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| serious bodily harm to, or the death of, another
is guilty | 9 |
| of a Class 2 felony. | 10 |
| (b) A person who knowingly sells, offers for sale, holds | 11 |
| for sale, or uses
100 or more but fewer than 500 counterfeit | 12 |
| items or counterfeit items having
a retail value in the | 13 |
| aggregate of more than $300 $1,000 but less than $10,000 | 14 |
| $25,000 is
guilty of a Class 3 felony Class A misdemeanor and | 15 |
| shall be fined at least 25% but no more
than 100% of the retail | 16 |
| value of all counterfeit items, except as follows that : | 17 |
| (1) A person
who
has a prior conviction for a violation | 18 |
| of this Act within the preceding 5 years
is guilty of a | 19 |
| Class 2 4 felony and shall be fined at least 50% 25% but no | 20 |
| more than
100% of the retail value of all counterfeit | 21 |
| items.
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| (2) A person who, as a result of the offense,
causes | 23 |
| serious bodily harm to, or the death of, another is guilty | 24 |
| of a Class 2 felony. | 25 |
| (c) A person who knowingly sells, offers for sale, holds | 26 |
| for sale, or uses
500 or more but fewer than 2,000 counterfeit |
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| items or counterfeit items
having a retail value in the | 2 |
| aggregate of $10,000 $25,000 or more but less than
$100,000
is | 3 |
| guilty of a Class 2 4 felony and shall be fined at least 50% 25% | 4 |
| but no more than
100% of the retail value of all counterfeit | 5 |
| items , except that a person who has a prior conviction of this | 6 |
| Act within the preceding 5 years is guilty of a Class 2 felony | 7 |
| and shall be fined at least 100% but no more than 300% of the | 8 |
| retail value of all counterfeit items .
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| (d) A person who knowingly sells, offers for sale, holds | 10 |
| for sale, or uses
2,000 or more counterfeit items or | 11 |
| counterfeit items having a retail value
in the aggregate of | 12 |
| $100,000 but less than $500,000 or more is guilty of a Class 1 | 13 |
| 3 felony and shall
be fined at least 50% 25% but no more than | 14 |
| 100% of the retail value of all
counterfeit items , except that | 15 |
| a person who has a prior conviction of this Act within the | 16 |
| preceding 5 years is guilty of a Class 1 felony and shall be | 17 |
| fined at least 100% but no more than 300% of the retail value | 18 |
| of all counterfeit items .
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| (e) A person who knowingly sells, offers for sale, holds | 20 |
| for sale, or uses 2,000 or more counterfeit items or | 21 |
| counterfeit items having a retail value in the aggregate of | 22 |
| $500,000 or more is guilty of a Class 1 non-probationable | 23 |
| felony. | 24 |
| (e-5) (d-5) For the purposes of determining the number of | 25 |
| counterfeit items
under subsection (a), (b), (c), or (d), or | 26 |
| (e), the service marks or trade marks need
not be an aggregate |
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| of identical marks but may be the aggregate of all
counterfeit | 2 |
| items offered for sale, held for sale, or used by the
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| defendant.
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| (f) (e) Unless otherwise specifically provided, a person, | 5 |
| including a
corporation, convicted of violating this Act shall
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| be fined at least 25% of the retail value of all the | 7 |
| counterfeit items. In
addition to any fine, the court shall | 8 |
| may, in its discretion , order that restitution
be paid to the | 9 |
| owners of the trademark, trade name, or service mark , and to | 10 |
| any other victim of the offense .
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| (f) A manufacturer of counterfeit items is guilty of a | 12 |
| Class 3 4 felony for a
first offense and a Class 2 3 felony for | 13 |
| second or subsequent offenses and may be
fined up to 3 times | 14 |
| the retail value of all counterfeit items produced by the
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| manufacturer.
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| (h) A person having possession, custody, or control of more | 17 |
| than 25 counterfeit items or counterfeit marks shall be | 18 |
| presumed not to be simply in possession of such, but to possess | 19 |
| said items with intent to offer for sale, to sell, or to | 20 |
| distribute. | 21 |
| (i) A state or federal certificate of registration of | 22 |
| trademark is prima facie evidence of the facts stated therein. | 23 |
| (j) The remedies provided herein shall be cumulative to the | 24 |
| other civil and criminal remedies provided by law. | 25 |
| (g) The retail value of the counterfeit item shall be the | 26 |
| counterfeiter's
per unit sale price for the counterfeit items. |
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| The retail value of a component
of a counterfeit item shall be | 2 |
| the same as the sale price of the counterfeit
item with which | 3 |
| the component is sold.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/9)
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| Sec. 9. Seizure and disposition.
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| (a) A peace officer shall may , upon probable cause, seize | 8 |
| any counterfeit items, counterfeit marks, goods, wares,
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| merchandise, or
other product of labor or services to which a | 10 |
| counterfeit trademark, trade
name, or service mark is attached | 11 |
| or affixed, or on which the counterfeit is
printed, painted, | 12 |
| stamped or impressed, or any component of that merchandise
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| knowingly possessed in violation of this Act.
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| (b) A peace officer shall may seize any vehicle, aircraft, | 15 |
| vessel, machinery or
other instrumentality which the
officer | 16 |
| reasonably believed was knowingly used to commit or facilitate | 17 |
| a violation of
this Act.
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| (c) A peace officer shall, upon probable cause, seize any | 19 |
| proceeds resulting from a violation of this Act. | 20 |
| (d) (c) Seized counterfeit goods shall be destroyed upon | 21 |
| the written consent of
the
defendant or by judicial | 22 |
| determination that the seized goods are counterfeit
items or | 23 |
| otherwise bear the trademark, trade name or service mark | 24 |
| without the
authorization of the owner, unless another | 25 |
| disposition of the goods is
consented to by the owner of the |
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| trademark, trade
name or service mark.
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| The seizure and forfeiture of vehicles, aircraft, vessels, | 3 |
| machinery, or
other instrumentalities provided for by this | 4 |
| Section shall be carried out in
the same manner and pursuant to | 5 |
| the same procedures as provided in Article 36
of the Criminal | 6 |
| Code of 1961 with respect to vessels, vehicles, and
aircraft.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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