CHAPTER 312
SB 394-FN – FINAL VERSION
02/03/10 0336s
21Apr2010… 1263h
21Apr2010… 1519h
06/02/10 2199eba
2010 SESSION
04/09
SENATE BILL 394-FN
AN ACT relative to dealing in counterfeit goods.
SPONSORS: Sen. Letourneau, Dist 19; Sen. Reynolds, Dist 2; Sen. Bradley, Dist 3; Rep. Packard, Rock 3; Rep. Pantelakos, Rock 16; Rep. Welch, Rock 8; Rep. Rausch, Rock 5; Rep. Shurtleff, Merr 10
This bill revises the statute governing counterfeit goods by inserting provisions on forfeiture and restitution.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
02/03/10 0336s
21Apr2010… 1263h
21Apr2010… 1519h
06/02/10 2199eba
10-2795
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to dealing in counterfeit goods.
Be it Enacted by the Senate and House of Representatives in General Court convened:
312:1 Dealing in Counterfeit Goods. Amend RSA 638:6-b to read as follows:
638:6-b Dealing in Counterfeit Goods.
I. [As used] In this section, “counterfeit mark” means [any unauthorized reproduction or copy of intellectual property, or intellectual property affixed to any goods sold, offered for sale, manufactured, or distributed without the authority of the owner of the intellectual property “Intellectual property” means any trademark, service mark, trade name, label, term, device, design, or word that is adopted or used by a person to identify such person's goods and registered, filed, or recorded under RSA 350-A, or the laws of any other state, or registered in the principal register of the United States Patent and Trademark Office]a spurious mark that:
(a) Is applied to, or attached to, or used in connection with in any way, any goods, or packaging of such goods, or any other component of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with any goods;
(b) Is identical to, or substantially indistinguishable from, a mark registered under RSA 350-A, or the laws of any other state, or that is recorded on the principal register in the United States Patent and Trademark Office and is in use, whether or not the defendant knew the mark was registered; and
(c) By the application or use of such mark, is likely to cause confusion, to cause mistake, or to deceive.
II. Any person who purposely or knowingly manufactures, [uses,] displays, advertises, distributes, offers for sale, sells or possesses with intent to sell, or distributes any goods bearing or identified by a counterfeit mark shall be guilty of a class A misdemeanor for a first offense and a class B felony for any subsequent offense. Each individual good bearing or identified by a counterfeit mark shall constitute a separate offense.
III. [Any person having possession, custody, or control of more than 25 items bearing a counterfeit mark shall be presumed to possess said items with the intent to sell or distribute. Any state or federal certificate of registration of any intellectual property shall be prima facie evidence of the facts stated therein.] Evidence that a person had possession, custody, or control of more than 25 items bearing a counterfeit mark shall be prima facie evidence that the person had possession with the intent to sell or distribute the items.
IV. Any goods that bear or consist of a counterfeit mark used in committing a violation of this section shall be subject to forfeiture to the state of New Hampshire and no property right shall exist in such property. At the conclusion of all criminal proceedings, the court shall order such items be destroyed or disposed of in another manner with the written consent of the trademark owner.
V.(a) The following property is subject to forfeiture for an offense under this section:
(1) Any property used by the defendant in any manner to facilitate, aid, or abet, a violation of this section; and
(2) Any property constituting or derived from any proceeds obtained by the defendant, either directly or indirectly, as a result of a violation of this section.
(b) Such property may be seized by a law enforcement agency for forfeiture as follows:
(1) Pursuant to a search warrant or seizure warrant on an affidavit under oath demonstrating that probable cause exists for its forfeiture;
(2) Physically, on probable cause to believe that the property is subject to forfeiture; or
(3) Constructively, on probable cause to believe that the property is subject to forfeiture under this section, by recording a notice of pending forfeiture in the registry of deeds in the county where the real property is located or at the town clerk's office where the person’s property is located stating that the state intends to seek forfeiture of the identified property pursuant to this section.
(c) A seizure for forfeiture without process under subparagraph (b)(2) or (b)(3) shall be reasonable if made under circumstances in which a warrantless seizure or arrest would be valid in accordance with state law.
(d) The seizing agency shall notify the defendant within 7 days of any seizure of property of its intent to forfeit the property pursuant to this section.
(e) The forfeiture of any property or item under this paragraph shall be governed by RSA 595-A:6. The state shall have the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. Except in the case of proceeds, upon a finding that the property is subject to forfeiture, the court shall determine whether the forfeiture of the property is not excessive in relation to the underlying criminal offense. In making this determination, the court shall consider whether in addition to any pertinent
considerations:
(1) There is a substantial connection between the property to be forfeited and the underlying offense;
(2) Criminal activities conducted by or through the use of the property were extensive; and
(3) The value of the property to be forfeited greatly outweighs the cost of prosecution and the harm caused by the criminal conduct.
(f) Final orders for forfeiture shall be implemented by the seizing agency and all proceeds of the forfeiture shall go to that agency.
(g) At the request of any party to the forfeiture proceeding, the court shall grant a continuance until the final resolution of any criminal proceedings which were brought against a party under this section and which arose from the transaction which gave rise to the forfeiture proceeding. No party’s interest in property shall be forfeited unless a party has been found guilty of the underlying charge.
VI. The court may order a person convicted under this section to pay restitution pursuant to RSA 651:63 to the trademark owner and to any other person the court may determine. Any restitution ordered by the court shall include, but is not limited to, attorney’s fees, court costs, and any other expenses incurred by the trademark owner in the investigation and prosecution of the case.
312:2 Effective Date. This act shall take effect upon its passage.
Approved: July 13, 2010
Effective Date: July 13, 2010