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SB1631 Engrossed |
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| AN ACT concerning property.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Counterfeit Trademark Act is amended by |
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| changing Sections 1, 2, 3, 4, 8, and 9 as follows:
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| (765 ILCS 1040/1) (from Ch. 140, par. 23)
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| Sec. 1.
For the purposes of this Act, unless otherwise |
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| required by the
context:
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| "Counterfeit item" means any goods, components of goods, or |
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| services made,
produced, or knowingly sold or knowingly |
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| distributed that use or display a
counterfeit mark trade mark, |
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| trade name, or service mark that is a spurious mark identical |
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| with
or substantially indistinguishable from the registered |
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| mark as registered with
the United States Patent and Trademark |
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| Office .
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| "Counterfeit mark" means a spurious mark: |
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| (1) That is applied to or used in connection with any |
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| goods, services, labels, patches, fabric, stickers, |
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| wrappers, badges, emblems, medallions, charms, boxes, |
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| containers, cans, cases, hangtags, documentation, or |
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| packaging or any other components of any type or nature |
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| that are designed, marketed, or otherwise intended to be |
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| used on or in connection with any goods or services; |
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| (2) That is identical with, or substantially |
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| indistinguishable from, a mark registered in this State, |
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| any state, or on the principal register in the United |
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| States Patent and Trademark Office and in use, whether or |
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| not the defendant knew such mark was so registered; and |
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| (3) The application or use of which either (i) is |
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| likely to cause confusion, to cause mistake, or to deceive; |
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| or (ii) otherwise intended to be used on or in connection |
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| with the goods or services for which the mark is |
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| registered. |
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| "Mark" includes any trade-mark or service mark whether |
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| registered or
not. "Trade-mark" means anything adopted and used |
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| by a person to identify
goods made, sold, produced or |
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| distributed by him or her or with his or her
authorization
and |
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| which distinguishes them from goods made, sold, produced or |
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| distributed
by others and registered in this State, any state, |
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| or on the principal register in the United States Patent and |
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| Trademark Office . |
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| "Service mark" means anything adopted and used by a person |
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| to
identify services rendered by him or her or with his or her |
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| authorization and
that
distinguishes them from services |
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| rendered by others.
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| "Person" means any individual, firm, partnership, |
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| corporation,
association, union or other organization.
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| A mark shall be deemed to be "used" (1) in the case of a |
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| trade-mark,
when it is placed in any manner on the goods, in or |
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| on any container for
the goods, on the tags or labels affixed |
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| to the goods or containers, or is
displayed in physical |
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| association with the goods in the sale or
distribution thereof, |
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| or (2) in the case of a service mark, if it
identifies a |
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| service, even though the service may be rendered in connection
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| with the sale or distribution of goods of the owner of the |
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| mark. A mark
shall be deemed to be "used in this State" (1) in |
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| the case of a trade-mark
when it is used on goods which are |
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| sold or otherwise distributed in this
State, or (2) in the case |
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| of a service mark if the service identified by
the mark is |
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| rendered or received in this State.
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| "Trade-name" includes individual names and surnames, firm |
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| names and
corporate names used by manufacturers, |
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| industrialists, merchants,
agriculturists, and others to |
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| identify their businesses, vocations, or
occupations; the |
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| names or titles lawfully adopted and used by persons,
firms, |
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| associations, corporations, companies, unions, and any
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| manufacturing, industrial, commercial, agricultural, or other |
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| organizations
engaged in trade or commerce and capable of suing |
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| and being sued in a court
of law.
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| "Retail value" means: |
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| (1) The counterfeiter's per unit regular price for the |
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| counterfeit item, unless the counterfeit item would appear |
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| to a reasonably prudent person to be authentic, then the |
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| retail value shall be the price of the authentic |
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| counterpart; or if no authentic reasonably similar |
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| counterpart exists, then the retail value shall remain the |
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| counterfeiter's per unit regular sale price for the |
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| counterfeit item. |
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| (2) In the case of labels, patches, stickers, wrappers, |
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| badges, emblems, medallions, charms, boxes, containers, |
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| cans, cases, hangtags, documentation, or packaging or any |
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| other components of any type or nature that are designed, |
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| marketed, or otherwise intended to be used on or in |
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| connection with any counterfeit item, the retail value |
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| shall be treated as if each component was a finished good |
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| and valued as detailed in paragraph (1) above. |
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| "Bodily injury" means: |
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| (1) A cut, abrasion, bruise, burn, or disfigurement; |
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| (2) Physical pain; |
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| (3) Illness; |
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| (4) Impairment of the function of a bodily member, |
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| organ, or mental faculty; or |
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| (5) Any other injury to the body, no matter how |
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| temporary. |
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| "Serious bodily injury" means: |
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| (1) A substantial risk of death; |
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| (2) Extreme physical pain; |
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| (3) Protracted and obvious disfigurement; or |
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| (4) Protracted loss or impairment of the function of a |
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| bodily member, organ, or mental faculty. |
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| (Source: P.A. 89-693, eff. 6-1-97.)
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LRB096 04488 AJO 14540 b |
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| (765 ILCS 1040/2) (from Ch. 140, par. 24)
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| Sec. 2.
Whoever uses a counterfeit mark counterfeits or |
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| imitates any
trade-mark or service mark
of which he or she is |
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| not
the rightful owner or in any way utters or circulates any |
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| counterfeit or
imitation of such a trade-mark or service mark |
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| or knowingly uses such
counterfeit or
imitation or knowingly |
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| sells or disposes of or keeps or has in his or her
possession, |
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| with intent that the same shall be sold or disposed of, any
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| goods, wares, merchandise, or other product of labor or |
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| service, to which
any such
counterfeit or imitation is attached |
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| or affixed, or on which any such
counterfeit or imitation is |
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| printed, painted, stamped or impressed, or
knowingly sells or |
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| disposes of any goods, wares, merchandise or other
product of |
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| labor contained in any box, case, can, or package to
which or |
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| on
which any such counterfeit or imitation is attached, |
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| affixed, printed,
painted, stamped or impressed, or keeps or |
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| has in his possession with
intent that the same shall be sold |
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| or disposed of, any goods, wares,
merchandise or other product |
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| of labor in any box, case, can or
package to
which or on which |
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| any such counterfeit, or imitation is attached, affixed,
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| printed, painted, stamped or impressed or knowingly sells a |
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| service using a
counterfeit service mark, shall be guilty of a |
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| Class A
misdemeanor for each offense, or in the case of a |
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| counterfeit item shall be
punished
as provided in Section 8.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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SB1631 Engrossed |
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LRB096 04488 AJO 14540 b |
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| (765 ILCS 1040/3) (from Ch. 140, par. 25)
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| Sec. 3.
Every person who shall knowingly use a counterfeit |
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| mark or display a trade-mark,
trade name, or service mark of |
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| which he or she is not the lawful owner
in any manner not |
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| authorized
by such owner, whether or not the unauthorized use |
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| creates a likelihood of
confusion or misunderstanding, (a) in |
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| the sale of goods or services
produced by the
owner, but with |
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| alterations in packaging or labeling, or (b) in the sale of
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| goods or services produced by the owner but in a packaging form |
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| not
intended by him for
such sale, or (c) in the packaging or |
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| labeling of goods or services not
produced by the
owner, if the |
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| trade-mark, trade name, or service mark of the
owner is used |
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| for the purpose
or with the effect of exploiting or impairing |
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| the owner's good will or as a
means of representing a quality, |
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| property or characteristic of the goods or
services
being sold, |
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| other than the utility of the goods or services in the repair
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| of or as a
replacement of a component of the product of the |
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| owner and the trade-mark, trade name, or service mark is used |
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| in a non-misleading manner
solely to indicate such
utility, |
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| shall be deemed guilty of a Class A misdemeanor, or in the case |
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| of a
counterfeit item shall be punished as provided in Section |
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| 8. In all cases
where such owner is an incorporated association |
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| or union, suits under this
Act may be commenced and prosecuted |
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| by any officer or member of such
association or union on behalf |
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| of and for the use of such association or
union.
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LRB096 04488 AJO 14540 b |
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| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/4) (from Ch. 140, par. 26)
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| Sec. 4.
Any person or persons who shall in any way |
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| knowingly use the name or seal
of any
trade-mark or service |
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| mark owner in and about the sale of goods or
services or |
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| otherwise, not being
authorized to so use the same shall be |
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| deemed guilty of a Class A
misdemeanor, or in the case of a |
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| counterfeit item shall be punished as provided
in Section 8.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/8)
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| Sec. 8. Sentence.
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| (a) A person who knowingly sells, offers for sale, holds |
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| for sale, or
uses fewer than 100 counterfeit items or |
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| counterfeit items having a retail
value in the aggregate of |
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| $300 $1,000 or less is guilty of a Class A misdemeanor
and |
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| shall be fined at least 25% of the retail value of all |
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| counterfeit items
but no more than $1,000, except that a person |
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| who has a prior conviction for a
violation of this Act within |
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| the preceding 5 years is guilty of a Class 4
felony and shall |
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| be fined at least 50% 25% but no more than 100% of the retail
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| value of all counterfeit items.
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| (b) A person who knowingly sells, offers for sale, holds |
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| for sale, or uses
100 or more but fewer than 500 counterfeit |
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| items or counterfeit items having
a retail value in the |
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| aggregate of more than $300 $1,000 but less than $10,000 |
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| $25,000 is
guilty of a felony Class A misdemeanor and shall be |
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| fined at least 25% but no more
than 100% of the retail value of |
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| all counterfeit items, except that a person
who
has a prior |
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| conviction for a violation of this Act within the preceding 5 |
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| years
is guilty of a Class 2 4 felony and shall be fined at |
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| least 50% 25% but no more than
100% of the retail value of all |
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| counterfeit items.
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| (c) A person who knowingly sells, offers for sale, holds |
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| for sale, or uses
500 or more but fewer than 2,000 counterfeit |
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| items or counterfeit items
having a retail value in the |
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| aggregate of $10,000 $25,000 or more but less than
$100,000
is |
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| guilty of a Class 2 4 felony and shall be fined at least 50% 25% |
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| but no more than
100% of the retail value of all counterfeit |
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| items , except that a person who has a prior conviction of this |
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| Act within the preceding 5 years is guilty of a Class 2 felony |
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| and shall be fined at least 100% but no more than 300% of the |
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| retail value of all counterfeit items .
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| (d) A person who knowingly sells, offers for sale, holds |
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| for sale, or uses
2,000 or more counterfeit items or |
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| counterfeit items having a retail value
in the aggregate of |
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| $100,000 but less than $500,000 or more is guilty of a Class 1 |
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| 3 felony and shall
be fined at least 50% 25% but no more than |
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| 100% of the retail value of all
counterfeit items , except that |
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| a person who has a prior conviction of this Act within the |
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| preceding 5 years is guilty of a Class 1 felony and shall be |
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| fined at least 100% but no more than 300% of the retail value |
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| of all counterfeit items .
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| (e) A person who knowingly sells, offers for sale, holds |
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| for sale, or uses 2,000 or more counterfeit items or |
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| counterfeit items having a retail value in the aggregate of |
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| $500,000 or more is guilty of a Class 1 non-probationable |
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| felony. |
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| (e-5) (d-5) For the purposes of determining the number of |
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| counterfeit items
under subsection (a), (b), (c), or (d), or |
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| (e), the service marks or trade marks need
not be an aggregate |
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| of identical marks but may be the aggregate of all
counterfeit |
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| items offered for sale, held for sale, or used by the
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| defendant.
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| (f) (e) Unless otherwise specifically provided, a person, |
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| including a
corporation, convicted of violating this Act shall
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| be fined at least 25% of the retail value of all the |
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| counterfeit items. In
addition to any fine, the court shall |
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| may, in its discretion , order that restitution
be paid to the |
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| owners of the trademark, trade name, or service mark , and to |
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| any other victim of the offense .
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| (f) A manufacturer of counterfeit items is guilty of a |
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| Class 3 4 felony for a
first offense and a Class 2 3 felony for |
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| second or subsequent offenses and may be
fined up to 3 times |
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| the retail value of all counterfeit items produced by the
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| manufacturer.
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| (h) A person having possession, custody, or control of more |
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| than 25 counterfeit items or counterfeit marks shall be |
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| presumed not to be simply in possession of such, but to possess |
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| said items with intent to offer for sale, to sell, or to |
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| distribute. |
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| (i) In this State, any state or federal certificate of |
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| registration shall be prima facie evidence of the facts stated |
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| therein. |
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| (j) The remedies provided herein shall be cumulative to the |
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| other civil and criminal remedies provided by law. |
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| (g) The retail value of the counterfeit item shall be the |
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| counterfeiter's
per unit sale price for the counterfeit items. |
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| The retail value of a component
of a counterfeit item shall be |
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| the same as the sale price of the counterfeit
item with which |
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| the component is sold.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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| (765 ILCS 1040/9)
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| Sec. 9. Seizure and disposition.
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| (a) A peace officer shall may , upon probable cause, seize |
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| any counterfeit items, counterfeit marks, goods, wares,
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| merchandise, or
other product of labor or services to which a |
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| counterfeit trademark, trade
name, or service mark is attached |
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| or affixed, or on which the counterfeit is
printed, painted, |
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| stamped or impressed, or any component of that merchandise
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| knowingly possessed in violation of this Act.
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| (b) A peace officer shall may seize any vehicle, aircraft, |
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| vessel, machinery or
other instrumentality which the
officer |
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| reasonably believed was knowingly used to commit or facilitate |
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| a violation of
this Act.
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| (c) A peace officer shall, upon probable cause, seize any |
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| proceeds resulting from a violation of this Act. |
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| (d) (c) Seized counterfeit goods shall be destroyed upon |
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| the written consent of
the
defendant or by judicial |
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| determination that the seized goods are counterfeit
items or |
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| otherwise bear the trademark, trade name or service mark |
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| without the
authorization of the owner, unless another |
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| disposition of the goods is
consented to by the owner of the |
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| trademark, trade
name or service mark.
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| The seizure and forfeiture of vehicles, aircraft, vessels, |
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| machinery, or
other instrumentalities provided for by this |
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| Section shall be carried out in
the same manner and pursuant to |
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| the same procedures as provided in Article 36
of the Criminal |
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| Code of 1961 with respect to vessels, vehicles, and
aircraft.
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| (Source: P.A. 89-693, eff. 6-1-97.)
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