AN ACT Relating to counterfeiting; amending RCW 9.16.030 and 9.16.040; adding new sections to chapter 9.16 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 9.16 RCW to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Counterfeit mark" means:

(a) Any unauthorized reproduction or copy of intellectual property; or

(b) Intellectual property affixed to any item knowingly sold, offered for sale, manufactured, or distributed, or identifying services offered or rendered, without the authority of the owner of the intellectual property.

(2) "Intellectual property" means any trademark, service mark, trade name, label, term, device, design, or work adopted or used by a person to identify such person's goods or services. Intellectual property does not have exclusive use rights to trade names registered under chapter 19.80 RCW.

(3) "Retail value" means the counterfeiter's regular selling price for the item or service bearing or identified by the counterfeit mark. In the case of items bearing a counterfeit mark which are components of a finished product, the retail value shall be the counterfeiter's regular selling price of the finished product on or in which the component would be utilized.

Sec. 2. RCW 9.16.030 and 1909 c 249 s 344 are each amended to read as follows:

Every person who ((~~shall~~)) manufactures, advertises, distributes, uses, or displays, or ((~~have~~)) has in his or her possession with intent to use ((or)), display, or sell, the genuine label, trademark, term, design, device, or form of advertisement of any person, corporation, association, or union, lawfully filed for record in the office of the secretary of state, or the exclusive right to use which is guaranteed to any person, corporation, association, or union, by the laws of the United States, without the written authority of such person, corporation, association, or union, or who ((~~shall~~)) willfully forges ((or)), counterfeits ((or)), uses, or displays, or ((~~have~~)) has in his or her possession with intent to use or display, any representation, likeness, similitude, copy, or imitation of any genuine label, trademark, term, design, device, or form of advertisement, so filed or protected, or any die, plate, stamp, or other device for manufacturing the same, ((~~shall be~~)) is guilty of ((~~a gross misdemeanor~~)) counterfeiting.

Any state or federal certificate of registration of any intellectual property is prima facie evidence of the facts stated therein.

Sec. 3. RCW 9.16.040 and 1909 c 249 s 345 are each amended to read as follows:

Every person who ((~~shall~~)) knowingly sells, displays, or advertises, or ((~~have~~)) has in his or her possession with intent to sell, any goods, wares, merchandise, mixture, preparation, or compound having affixed thereto any label, trademark, term, design, device, or form of advertisement lawfully filed for record in the office of the secretary of state by any person, corporation, association, or union, or the exclusive right to the use of which is guaranteed to such person, corporation, association, or union under the laws of the United States, which label, trademark, term, design, device, or form of advertisement ((~~shall have been~~)) is used or affixed thereto without the written authority of such person, corporation, association, or union, or having affixed thereto any forged or counterfeit representation, likeness, similitude, copy, or imitation thereof, ((~~shall be~~)) is guilty of ((~~a misdemeanor~~)) counterfeiting.

Any state or federal certificate of registration of any intellectual property is prima facie evidence of the facts stated therein.

NEW SECTION. Sec. 4. A new section is added to chapter 9.16 RCW to read as follows:

(1) Counterfeiting is a misdemeanor, except as provided in subsections (2) and (3) of this section.

(2) Counterfeiting is a gross misdemeanor if:

(a) The defendant has previously been convicted under this section; or

(b) The violation involves more than one hundred but fewer than one thousand items bearing a counterfeit mark or the total retail value of all items bearing a counterfeit mark or the total retail value of all items bearing, or services identified by, a counterfeit mark is more than one thousand dollars but less than ten thousand dollars.

(3) Counterfeiting is a class C felony if:

(a) The defendant has been previously convicted of two or more offenses under this section;

(b) The violation involves the manufacture or production of items bearing counterfeit marks; or

(c) The violation involves one thousand or more items bearing a counterfeit mark or the total retail value of all items bearing, or services identified by, a counterfeit mark is ten thousand dollars or more.

(4) For purposes of this section, the quantity or retail value of items or services shall include the aggregate quantity or retail value of all items bearing, or services identified by, every counterfeit mark the defendant manufactures, uses, displays, advertises, distributes, possesses, or possesses with intent to sell.

(5) A person guilty of counterfeiting shall be fined an amount up to three times the retail value of the items bearing, or services identified by, a counterfeit mark, unless extenuating circumstances are shown by the defendant.

(6) The penalties provided for in this section are cumulative and do not affect any other civil and criminal penalties provided by law.

NEW SECTION. Sec. 5. A new section is added to chapter 9.16 RCW to read as follows:

(1) Any items bearing a counterfeit mark, and all personal property employed or used in connection with counterfeiting, including but not limited to, any items, objects, tools, machines, equipment, instruments, or vehicles of any kind, shall be seized by any law enforcement officer.

All seized personal property referenced in this subsection shall be forfeited in accordance with RCW 10.105.010.

(2) Upon request of the intellectual property owner, all seized items bearing a counterfeit mark shall be released to the intellectual property owner for destruction or disposition.

(3) If the intellectual property owner does not request release of seized items bearing a counterfeit mark, such items shall be destroyed unless the intellectual property owner consents to another disposition.