§ 2320. — Trafficking in counterfeit goods or services.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC2320]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 113--STOLEN PROPERTY
Sec. 2320. Trafficking in counterfeit goods or services
(a) Whoever intentionally traffics or attempts to traffic in goods
or services and knowingly uses a counterfeit mark on or in connection
with such goods or services shall, if an individual, be fined not more
than $2,000,000 or imprisoned not more than 10 years, or both, and, if a
person other than an individual, be fined not more than $5,000,000. In
the case of an offense by a person under this section that occurs after
that person is convicted of another offense under this section, the
person convicted, if an individual, shall be fined not more than
$5,000,000 or imprisoned not more than 20 years, or both, and if other
than an individual, shall be fined not more than $15,000,000.
(b) Upon a determination by a preponderance of the evidence that any
articles in the possession of a defendant in a prosecution under this
section bear counterfeit marks, the United States may obtain an order
for the destruction of such articles.
(c) All defenses, affirmative defenses, and limitations on remedies
that would be applicable in an action under the Lanham Act shall be
applicable in a prosecution under this section. In a prosecution under
this section, the defendant shall have the burden of proof, by a
preponderance of the evidence, of any such affirmative defense.
(d)(1) During preparation of the presentence report pursuant to Rule
32(c) of the Federal Rules of Criminal Procedure, victims of the offense
shall be permitted to submit, and the probation officer shall receive, a
victim impact statement that identifies the victim of the offense and
the extent and scope of the injury and loss suffered by the victim,
including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall
include--
(A) producers and sellers of legitimate goods or services
affected by conduct involved in the offense;
(B) holders of intellectual property rights in such goods or
services; and
(C) the legal representatives of such producers, sellers, and
holders.
(e) For the purposes of this section--
(1) the term ``counterfeit mark'' means--
(A) a spurious mark--
(i) that is used in connection with trafficking in goods
or services;
(ii) that is identical with, or substantially
indistinguishable from, a mark registered for those goods or
services 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
(iii) the use of which is likely to cause confusion, to
cause mistake, or to deceive; or
(B) a spurious designation that is identical with, or
substantially indistinguishable from, a designation as to which
the remedies of the Lanham Act are made available by reason of
section 220506 of title 36;
but such term does not include any mark or designation used in
connection with goods or services of which the manufacturer or
producer was, at the time of the manufacture or production in
question authorized to use the mark or designation for the type of
goods or services so manufactured or produced, by the holder of the
right to use such mark or designation;
(2) the term ``traffic'' means transport, transfer, or otherwise
dispose of, to another, as consideration for anything of value, or
make or obtain control of with intent so to transport, transfer, or
dispose of; and
(3) the term ``Lanham Act'' means the Act entitled ``An Act to
provide for the registration and protection of trademarks used in
commerce, to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946 (15
U.S.C. 1051 et seq.).
(f)(1) Beginning with the first year after the date of enactment of
this subsection, the Attorney General shall include in the report of the
Attorney General to Congress on the business of the Department of
Justice prepared pursuant to section 522 of title 28, an accounting, on
a district by district basis, of the following with respect to all
actions taken by the Department of Justice that involve trafficking in
counterfeit labels for phonorecords, copies of computer programs or
computer program documentation or packaging, copies of motion pictures
or other audiovisual works (as defined in section 2318 of this title),
criminal infringement of copyrights (as defined in section 2319 of this
title), unauthorized fixation of and trafficking in sound recordings and
music videos of live musical performances (as defined in section 2319A
of this title), or trafficking in goods or services bearing counterfeit
marks (as defined in section 2320 of this title):
(A) The number of open investigations.
(B) The number of cases referred by the United States Customs
Service.
(C) The number of cases referred by other agencies or sources.
(D) The number and outcome, including settlements, sentences,
recoveries, and penalties, of all prosecutions brought under
sections 2318, 2319, 2319A, and 2320 of this title.
(2)(A) The report under paragraph (1), with respect to criminal
infringement of copyright, shall include the following:
(i) The number of infringement cases in these categories:
audiovisual (videos and films); audio (sound recordings); literary
works (books and musical compositions); computer programs; video
games; and, others.
(ii) The number of online infringement cases.
(iii) The number and dollar amounts of fines assessed in
specific categories of dollar amounts. These categories shall be: no
fines ordered; fines under $500; fines from $500 to $1,000; fines
from $1,000 to $5,000; fines from $5,000 to $10,000; and fines over
$10,000.
(iv) The total amount of restitution ordered in all copyright
infringement cases.
(B) In this paragraph, the term ``online infringement cases'' as
used in paragraph (2) means those cases where the infringer--
(i) advertised or publicized the infringing work on the
Internet; or
(ii) made the infringing work available on the Internet for
download, reproduction, performance, or distribution by other
persons.
(C) The information required under subparagraph (A) shall be
submitted in the report required in fiscal year 2005 and thereafter.
(Added Pub. L. 98-473, title II, Sec. 1502(a), Oct. 12, 1984, 98 Stat.
2178; amended Pub. L. 103-322, title XXXII, Sec. 320104(a), title
XXXIII, Sec. 330016(1)(U), Sept. 13, 1994, 108 Stat. 2110, 2148; Pub. L.
104-153, Sec. 5, July 2, 1996, 110 Stat. 1387; Pub. L. 105-147,
Sec. 2(f), Dec. 16, 1997, 111 Stat. 2679; Pub. L. 105-225, Sec. 4(b),
Aug. 12, 1998, 112 Stat. 1499; Pub. L. 105-354, Sec. 2(c)(1), Nov. 3,
1998, 112 Stat. 3244; Pub. L. 107-140, Sec. 1, Feb. 8, 2002, 116 Stat.
12; Pub. L. 107-273, div. A, title II, Sec. 205(e), Nov. 2, 2002, 116
Stat. 1778.)
References in Text
The Lanham Act, referred to in subsecs. (c) and (e)(1)(B), (3), also
known as the Trademark Act of 1946, is act July 5, 1946, ch. 540, 60
Stat. 427, as amended, which is classified generally to chapter 22
(Sec. 1051 et seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title note set out
under section 1051 of Title 15 and Tables.
The Federal Rules of Criminal Procedure, referred to in subsec.
(d)(1), are set out in the Appendix to this title.
The date of enactment of this subsection, referred to in subsec.
(f), is date of enactment of Pub. L. 104-153, which was approved July 2,
1996.
Codification
Another section 2320 was renumbered section 2321 of this title.
Amendments
2002--Subsec. (e)(1)(B). Pub. L. 107-140 substituted ``section
220506 of title 36'' for ``section 220706 of title 36''.
Subsec. (f)(1). Pub. L. 107-273, Sec. 205(e), designated existing
provisions as par. (1), substituted ``this title'' for ``title 18''
wherever appearing, redesignated former pars. (1) to (4) as subpars. (A)
to (D), respectively, of par. (1), and added par. (2).
1998--Subsec. (e)(1)(B). Pub. L. 105-225, Sec. 4(b)(1), as amended
by Pub. L. 105-354, Sec. 2(c)(1), substituted ``section 220706 of title
36'' for ``section 110 of the Olympic Charter Act''.
Subsec. (e)(2). Pub. L. 105-225, Sec. 4(b)(2), as amended by Pub. L.
105-354, Sec. 2(c)(1), inserted ``and'' after semicolon at end.
Subsec. (e)(3). Pub. L. 105-225, Sec. 4(b)(3), as amended by Pub. L.
105-354, Sec. 2(c)(1), substituted a period for ``; and'' at end.
Subsec. (e)(4). Pub. L. 105-225, Sec. 4(b)(4), as amended by Pub. L.
105-354, Sec. 2(c)(1), struck out par. (4) which read as follows: ``the
term `Olympic Charter Act' means the Act entitled `An Act to incorporate
the United States Olympic Association', approved September 21, 1950 (36
U.S.C. 371 et seq.).''
1997--Subsecs. (d) to (f). Pub. L. 105-147 added subsec. (d) and
redesignated former subsecs. (d) and (e) as (e) and (f), respectively.
1996--Subsec. (e). Pub. L. 104-153 added subsec. (e).
1994--Pub. L. 103-322, Sec. 330016(1)(U), which directed the
amendment of this section by striking ``not more than $250,000'' and
inserting ``under this title'', could not be executed because the phrase
``not more than $250,000'' did not appear in text subsequent to
amendment of subsec. (a) by Pub. L. 103-322, Sec. 320104(a). See below.
Subsec. (a). Pub. L. 103-322, Sec. 320104(a), in first sentence,
substituted ``$2,000,000 or imprisoned not more than 10 years'' for
``$250,000 or imprisoned not more than five years'' and ``$5,000,000''
for ``$1,000,000'', and in second sentence, substituted ``$5,000,000 or
imprisoned not more than 20 years'' for ``$1,000,000 or imprisoned not
more than fifteen years'' and ``$15,000,000'' for ``$5,000,000''.
Effective Date of 1998 Amendment
Pub. L. 105-354, Sec. 2(c), Nov. 3, 1998, 112 Stat. 3244, provided
that the amendment made by section 2(c) is effective Aug. 12, 1998.
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.
Section Referred to in Other Sections
This section is referred to in sections 1956, 1961 of this title;
title 19 section 1595a; title 49 section 80302.
