Public Act 096-0631
 
SB1631 Enrolled LRB096 04488 AJO 14540 b

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