HOUSE BILL No. 4728 April 30, 1997, Introduced by Reps. Profit, Alley, Schroer, Brater, Griffin, Dalman, Richner, Middaugh, Rhead, Mans, Gernaat, Walberg, Schermesser and Thomas and referred to the Committee on Commerce. A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending sections 263 and 264 (MCL 750.263 and 750.264); and to repeal acts and parts of acts. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 263. (1)Forging and counterfeiting trade marks,2labels, stamps, etc.--Any person who shall knowingly and will-3fully forge or counterfeit, or cause or procure to be forged or4counterfeited, any representation, likeness, similitude, copy or5imitation of the private stamp, brand, wrapper or label, usually6affixed by any mechanic, druggist, apothecary, or manufacturer7to, and used by such mechanic, druggist, apothecary or manufac-8turer on, or in the sale of any goods, wares or merchandise and9 A PERSON WHO WILLFULLY COUNTERFEITS AN IDENTIFYING MARK with 10 intent to deceive or defraudthe purchaser or manufacturer of00815'97 JOJ 2 1any goods, wares or merchandise whatsoever, upon conviction2thereof, shall beANOTHER PERSON OR TO REPRESENT AN ITEM OF 3 PROPERTY OR SERVICE AS BEARING OR IDENTIFIED BY AN AUTHORIZED 4 IDENTIFYING MARK IS guilty of a misdemeanor,punishable by 5 imprisonmentin the county jailfora term ofnot more than 1 6 year,orbya fine of not more than500 dollars$500.00, 7 OR BOTH. 8 (2) EXCEPT AS PROVIDED IN SUBSECTION (3), A PERSON WHO WILL- 9 FULLY DELIVERS, OFFERS TO DELIVER, USES, DISPLAYS, ADVERTISES, OR 10 POSSESSES WITH INTENT TO DELIVER ANY ITEM OF PROPERTY OR SERVICES 11 BEARING, OR IDENTIFIED BY A COUNTERFEIT MARK, IS GUILTY OF A MIS- 12 DEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 1 YEAR OR A 13 FINE OF NOT MORE THAN $500.00 OR 3 TIMES THE AGGREGATE VALUE OF 14 THE VIOLATION, WHICHEVER IS GREATER, OR BOTH IMPRISONMENT AND A 15 FINE. 16 (3) A PERSON WHO VIOLATES SUBSECTION (2) IS GUILTY OF A 17 FELONY PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 5 YEARS OR A 18 FINE OF NOT MORE THAN $50,000.00 OR 3 TIMES THE AGGREGATE VALUE 19 OF THE VIOLATION, WHICHEVER IS GREATER, OR BOTH IMPRISONMENT AND 20 A FINE, IF ANY OF THE FOLLOWING APPLY: 21 (A) THE PERSON HAS A PRIOR CONVICTION UNDER THIS SECTION, 22 SECTION 264 OR 265A, OR FORMER SECTION 265 OR A LAW OF THE UNITED 23 STATES OR ANOTHER STATE SUBSTANTIALLY CORRESPONDING TO THIS SEC- 24 TION, SECTION 264 OR 265A, OR FORMER SECTION 265. 25 (B) THE VIOLATION INVOLVED MORE THAN 100 ITEMS OF PROPERTY. 26 (C) THE AGGREGATE VALUE OF THE VIOLATION IS MORE THAN 27 $1,000.00. 00815'97 3 1 (4) A PERSON WHO WILLFULLY MANUFACTURES OR PRODUCES AN ITEM 2 OF PROPERTY BEARING OR IDENTIFIED BY A COUNTERFEIT MARK IS GUILTY 3 OF A FELONY PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 5 YEARS 4 OR A FINE OF NOT MORE THAN $50,000.00 OR 3 TIMES THE AGGREGATE 5 VALUE OF THE VIOLATION, WHICHEVER IS GREATER, OR BOTH IMPRISON- 6 MENT AND A FINE. 7 (5) WILLFUL POSSESSION OF MORE THAN 25 ITEMS OF PROPERTY 8 BEARING OR IDENTIFIED BY A COUNTERFEIT MARK GIVES RISE TO A 9 REBUTTABLE PRESUMPTION THAT THE PERSON POSSESSED THOSE ITEMS WITH 10 INTENT TO DELIVER THEM IN VIOLATION OF SUBSECTION (2). 11 (6) ANY ITEM OF PROPERTY BEARING A COUNTERFEIT MARK SHALL BE 12 SEIZED UNDER WARRANT OR INCIDENT TO A LAWFUL ARREST. UPON FINAL 13 DISPOSITION OF THE CASE AND THE COURT'S DETERMINATION THAT AN 14 ITEM OF PROPERTY BEARS A COUNTERFEIT MARK, 1 OF THE FOLLOWING 15 APPLIES TO THAT ITEM OF PROPERTY: 16 (A) UPON REQUEST OF THE OWNER OF THE IDENTIFYING MARK, THE 17 ITEM SHALL BE RETURNED TO THAT OWNER FOR DESTRUCTION OR OTHER 18 DISPOSITION OR USE APPROVED BY THE COURT. 19 (B) IN THE ABSENCE OF A REQUEST BY THE OWNER OF THE IDENTI- 20 FYING MARK, THE SEIZING LAW ENFORCEMENT AGENCY SHALL DESTROY THE 21 ITEM AS CONTRABAND OR THE COURT MAY ORDER AN ALTERNATIVE DISPOSI- 22 TION WITH THE OWNER'S CONSENT. 23 (7) AS USED IN THIS SECTION AND SECTION 264: 24 (A) "AGGREGATE VALUE OF THE VIOLATION" MEANS THE TOTAL VALUE 25 OF ALL ITEMS OF PROPERTY OR SERVICES BEARING OR IDENTIFIED BY A 26 COUNTERFEIT MARK AND INVOLVED IN THE VIOLATION, DETERMINED USING 27 THE DEFENDANT'S REGULAR OR INTENDED SELLING PRICE FOR EACH ITEM 00815'97 4 1 OR SERVICE OR, IF AN ITEM OF PROPERTY IS INTENDED AS A COMPONENT 2 OF A FINISHED PRODUCT, THE DEFENDANT'S REGULAR OR INTENDED SELL- 3 ING PRICE OF THE FINISHED PRODUCT IN WHICH THE COMPONENT WOULD BE 4 USED. 5 (B) "COUNTERFEIT MARK" MEANS EITHER OF THE FOLLOWING: 6 (i) A COPY OR IMITATION OF AN IDENTIFYING MARK WITHOUT 7 AUTHORIZATION BY THE IDENTIFYING MARK'S OWNER. 8 (ii) AN IDENTIFYING MARK AFFIXED TO AN ITEM OF PROPERTY OR 9 IDENTIFYING SERVICES WITHOUT AUTHORIZATION BY THE IDENTIFYING 10 MARK'S OWNER. 11 (C) "DELIVER" MEANS TO ACTUALLY OR CONSTRUCTIVELY TRANSFER 12 OR ATTEMPT TO TRANSFER AN ITEM OF PROPERTY FROM 1 PERSON TO 13 ANOTHER, REGARDLESS OF WHETHER THERE IS AN AGENCY RELATIONSHIP. 14 (D) "IDENTIFYING MARK" MEANS A TRADEMARK, SERVICE MARK, 15 TRADE NAME, NAME, LABEL, DEVICE, DESIGN, SYMBOL, OR WORD, IN ANY 16 COMBINATION, LAWFULLY ADOPTED OR USED BY A PERSON TO IDENTIFY 17 ITEMS OF PROPERTY MANUFACTURED, SOLD, OR LICENSED BY THE PERSON 18 OR SERVICES PERFORMED BY THE PERSON. 19 (E) "PERSON" MEANS AN INDIVIDUAL, PARTNERSHIP, CORPORATION, 20 LIMITED LIABILITY COMPANY, ASSOCIATION, UNION, OR OTHER LEGAL 21 ENTITY. FOR PURPOSES OF OWNERSHIP OF AN IDENTIFYING MARK, PERSON 22 INCLUDES A GOVERNMENTAL ENTITY. 23 Sec. 264.Possession of dies, plates, labels, etc., used24by manufacturer, etc., in sale of goods--Any person who shall25have in his possession anyA PERSON WHO POSSESSES A COUNTERFEIT 26 MARK WITH INTENT TO USE OR DELIVER IT, WHO POSSESSES A die, 27 plate, engraving,or printed label, brand, stamp, wrapper, or00815'97 5 1any representation, likeness, similitude, copy or imitation of2the private stamp, wrapper or label, usually affixed by any3mechanic or manufacturer, druggist or apothecary to, and used by4such mechanic, druggist, apothecary or manufacturer on, or in the5sale of any goods, wares or merchandise,TEMPLATE, PATTERN, OR 6 MATERIAL with intent touse or sell the said die, plate, engrav-7ing or printed stamp, label or wrapper, for the purpose of aiding8or assisting in any way whatever, in vending any goods, wares or9merchandise, in imitation of, or intended to resemble and be sold10for the goods, wares and merchandise of such mechanic, druggist,11apothecary or manufacturer, contrary to the provisions of the12next preceding section shall, upon conviction thereof, beCREATE 13 A COUNTERFEIT MARK, OR WHO POSSESSES AN IDENTIFYING MARK WITHOUT 14 AUTHORIZATION OF THE IDENTIFYING MARK'S OWNER AND WITH INTENT TO 15 CREATE A COUNTERFEIT MARK IS guilty of a misdemeanor,punish- 16 able by imprisonmentin the county jail ofFOR not more than 1 17 year,orbyA fine of not more than500 dollars$500.00, 18 OR BOTH. 19 Enacting section 1. Section 265 of the Michigan penal code, 20 1931 PA 328, MCL 750.265, is repealed. 21 Enacting section 2. This amendatory act does not take 22 effect unless Senate Bill No. _____ or House Bill No. _____ 23 (request no. 00815'97 a) of the 89th Legislature is enacted into 24 law. 00815'97 Final page. JOJ