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S02020 Summary:

S02020 Actions:

S02020 Floor Votes:

S02020 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2020--A
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 9, 2013
                                       ___________
 
        Introduced  by  Sens.  GRIFFO, GOLDEN -- read twice and ordered printed,
          and when  printed  to  be  committed  to  the  Committee  on  Consumer
          Protection  -- reported favorably from said committee and committed to
          the Committee on Codes -- committee discharged, bill amended,  ordered

          reprinted as amended and recommitted to said committee
 
        AN  ACT to amend the general business law and the penal law, in relation
          to the disposal of counterfeit products
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  360-m  of  the general business law, as added by
     2  chapter 319 of the laws of 1996, is amended to read as follows:
     3    § 360-m. Remedies. 1. Any owner of a mark registered under this  arti-
     4  cle  may proceed by suit to enjoin the manufacture, use, display or sale
     5  of any counterfeits or imitations thereof and  any  court  of  competent
     6  jurisdiction  may  grant  injunctions to restrain such manufacture, use,
     7  display or sale as may be by the said court deemed just and  reasonable,

     8  and  may require the defendants to pay to such owner all profits derived
     9  from and/or all damages suffered by reason of such wrongful manufacture,
    10  use, display or sale; and such court may also order that any such  coun-
    11  terfeits  or  imitations  in  the possession or under the control of any
    12  defendant in such case be delivered to an officer of the  court,  or  to
    13  the  complainant,  to  be  destroyed  or  donated.    The  court, in its
    14  discretion, may enter judgment for an amount not to exceed  three  times
    15  such  profits  and  damages  and/or  reasonable  attorneys'  fees of the
    16  prevailing party in such cases where the court  finds  the  other  party
    17  committed such wrongful acts with knowledge or in bad faith or otherwise
    18  as  according  to the circumstances of this case. The enumeration of any
    19  right or remedy herein shall not affect a registrant's right  to  prose-

    20  cute under the penal law.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04354-03-3
        S. 2020--A                          2
 
     1    2.  If a court makes a determination that the counterfeit or imitation
     2  products should be donated, then notice of that determination  shall  be
     3  given  to  the lawful mark owner of the products. The notice shall state
     4  that the court intends to donate the seized products  to  help  indigent
     5  individuals  and  that  the donation will proceed unless the lawful mark
     6  owner objects to the donation, in writing. The lawful  mark  owner  will

     7  have  thirty days to object to the court to the donation.  If the lawful
     8  mark owner does not object, or gives  no  response  within  that  period
     9  despite  having received the notice, then the court shall take that as a
    10  granting of consent by the lawful mark owner that  the  donation  should
    11  proceed.
    12    3.  The  counterfeit or imitation products may only be given to a not-
    13  for-profit corporation that has  an  established  history  of  providing
    14  goods  and  services to indigent individuals. Organizations may petition
    15  the court to be considered a recipient of the counterfeit  or  imitation
    16  products.  The  judge,  in  his  or her sole discretion, shall determine
    17  whether an organization qualifies pursuant to this subdivision and which

    18  organization shall receive the counterfeit or imitation products.
    19    4. Any counterfeit or imitation products received by  an  organization
    20  through  this  section  may not be sold by the organization, nor may any
    21  person or entity in possession  of  any  of  these  products  sell  such
    22  products.
    23    5.  Any  counterfeit or imitation products received by an organization
    24  through this section must have the products' tags removed  or  have  the
    25  products  marked,  altered,  imprinted  or  indelibly  stamped  so as to
    26  prevent their resale or any confusion with the actual  products  of  the
    27  lawful mark owner.
    28    6.  Provided, however, that the only counterfeit or imitation products

    29  that may be donated pursuant to this section shall be clothing, and  all
    30  other  counterfeit or imitation products must be destroyed in accordance
    31  with this section or any other provision of applicable law.
    32    § 2. Section 165.74 of the penal law, as amended by chapter 535 of the
    33  laws of 1995, is amended to read as follows:
    34  § 165.74 Seizure and distribution or destruction of goods bearing  coun-
    35             terfeit trademarks.
    36    Any  goods  manufactured,  sold,  offered  for  sale,  distributed  or
    37  produced in violation of this article may be seized by any police  offi-
    38  cer.  The magistrate must, within forty-eight hours after arraignment of
    39  the defendant, determine whether probable cause exists to  believe  that
    40  the  goods had been manufactured, sold, offered for sale, distributed or

    41  produced in violation of this article, and upon a finding that  probable
    42  cause  exists  to  believe  that  the goods had been manufactured, sold,
    43  offered for sale, distributed, or produced in violation of this article,
    44  the court shall authorize such articles to be retained as evidence pend-
    45  ing the trial of the defendant.  Upon conviction of the  defendant,  the
    46  articles  in  respect  whereof  the  defendant stands convicted shall be
    47  destroyed or donated.  Destruction shall not include  auction,  sale  or
    48  distribution  of the items in their original form. Donation of the items
    49  shall be made at the court's discretion upon  the  request  of  any  law
    50  enforcement  agency  and  pursuant to the restrictions and procedures of
    51  section three hundred sixty-m of the general business law, for the bene-

    52  fit of indigent individuals.
    53    § 3. This act shall take effect immediately.