§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) 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 110 of the Olympic Charter Act;

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;

(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.); and

(4) 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.).

(Added Pub. L. 98–473, title II, §1502(a), Oct. 12, 1984, 98 Stat. 2178 ; amended Pub. L. 103–322, title XXXII, §320104(a), title XXXIII, §330016(1)(U), Sept. 13, 1994, 108 Stat. 2110 , 2148.)

References in Text

The Lanham Act, referred to in subsecs. (c) and (d)(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 (§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 Olympic Charter Act, referred to in subsec. (d)(4), is act Sept. 21, 1950, ch. 975, 64 Stat. 899 , as amended, which is classified generally to chapter 17 (§371 et seq.) of Title 36, Patriotic Societies and Observances. Section 110 of the Olympic Charter Act is classified to section 380 of Title 36. For complete classification of this Act to the Code, see Tables.

Codification

Another section 2320 was renumbered section 2321 of this title.

Amendments

1994-Pub. L. 103–322, §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, §320104(a). See below.

Subsec. (a). Pub. L. 103–322, §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".

Section Referred to in Other Sections

This section is referred to in section 1956 of this title; title 19 section 1595a.