BILL ANALYSIS
AB 322
Page 1
Date of Hearing: March 31, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 322 (Silva) - As Introduced: February 18, 2009
SUMMARY : Replaces the term "taser" with "electronic control
device" (ECD).
EXISTING LAW :
1)Provides that any person who brings or possesses any taser or
stun gun within any state or local public building or at any
meeting required to be open to the public shall be guilty of a
public offense punishable by imprisonment in a county jail for
not more than one year or in state prison. [Penal Code
Section 171b(a)(5).]
2)Prohibits possession of any taser or stun gun within any
sterile area of an airport or passenger vessel terminal.
[Penal Code Section 171.5(c)(10).]
3)States that every person who commits an assault upon the
person of a school employee with a stun gun or taser, and who
knows or reasonably should know that the person is a school
employee engaged in the performance of his or her duties, when
the school employee is engaged in the performance of his or
her duties, shall be punished by imprisonment in the county
jail for a term not exceeding one year or by imprisonment in
the state prison for two, three or four years. [Penal Code
Section 245.5(c).]
4)Creates an exception for a duly appointed peace officer, a
full-time paid peace officer of another state or the Federal
Government who is carrying out official duties while
California, a person summoned by any officer to assist in
making arrests or preserving the peace while the person is
actually engaged in assisting any officer, or a member of the
military forces of this state or the United States who is
engaged in the performance of his or her duties, who brings or
possesses any dirk, dagger, ice pick, knife having a blade
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longer than 2 1/2 inches, folding knife with a blade that
locks into place, a razor with an unguarded blade, a taser, or
a stun gun, any instrument that expels a metallic projectile
such as a BB or a pellet, through the force of air pressure,
CO[2] pressure, or spring action, or any spot marker gun, upon
the grounds of, or within, any public or private school
providing instruction in Kindergarten or any of Grades 1 to
12, inclusive, is guilty of a public offense, punishable by
imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison. [Penal Code Section
626.10(a).]
5)Requires any health practitioner employed in a health
facility, clinic, physician's office, local or state public
health department, or a clinic or other type of facility
operated by a local or state public health department who, in
his or her professional capacity or within the scope of his or
her employment, provides medical services for a physical
condition to a patient whom he or she knows or reasonably
suspects has been assaulted with a stun gun or taser to
immediately made a report to a local law enforcement agency.
(Penal Code Section 11160.)
6)Defines "stun gun" to include any item except a taser, used or
intended to be used as either an offensive or defensive weapon
capable of temporarily immobilizing a person by the infliction
of an electrical charge. (Penal Code Section 12650.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 322 is a
modest measure that will replace a brand name in the Penal
Code with a generic term for a product that multiple
manufacturers produce. As a matter of sound policy, this
should be corrected, as a brand name can not describe the
product itself."
2)Background : According to information provided by the author,
"This measure will remove a brand trademark and replace it
with a generic term for the actual device."
3)ECDs : ECDs are devices intended to incapacitate a person or
animal through use of electric shock. Remote stun guns are
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hand-held devices that resemble a small handgun and propel two
barbs from the front of the weapon when the trigger is pulled.
The barbs are intended to penetrate and attach to skin or
clothing. Removing the barbs usually requires medical
assistance. Models currently in use send 50,000 volts of
electrical current through wires connecting the device to the
barbs. The current flows into the body causing extreme pain
and a loss of muscular control. TASER International and
Stinger Systems are the two main manufacturers of ECDs. TASER
International has several models of remote stun guns currently
on the market specifically designed for use by private
citizens, including one recently released model with a leopard
skin exterior and a holster with a built-in music player.
[ (as of April 4,
2008).] Some models also are convertible into "stun guns,"
which require direct contact of the gun's handset to a
person's body and two fixed electrodes pass the current pulses
into the subject.
The term "taser" is currently used in the California Penal Code
to describe ECDs and this bill replaces that term with the
term "remote stun gun."
4)TASER is a Registered Trademark : A trademark is "a word
phrase, logo, or other graphic symbol used by a manufacturer
or seller to distinguish its product or products from the use
of others." [Black's Law Dict. (2nd ed. 2001) p. 715, col.
1.] A trademark will remain the exclusive property of its
owner forever if it is not abandoned. There are two types of
abandonment. One is simply the cessation of the use of a mark
without intent to resume it. The other occurs "when any course
of conduct of the registrant, including acts of omission or
commission, causes the mark to lose its significance as an
indication of origin." [15 U.S.C. 1127(b).] Accordingly,
trademarks must be handled with care as improper use literally
can destroy a trademark. If the consuming public comes to
treat a trademark as the name for a type of product, rather
than as a designation for one particular brand of a product,
the mark will no longer "identify" and "distinguish" the goods
of one manufacturer. The trademark under these circumstances
has become a generic term, which means it is available for any
person to use.
History shows that a manufacturer's own advertising or labeling
frequently is at fault when a trademark is lost by conversion
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into a generic term, which happened with aspirin, cellophane,
escalator, linoleum, shredded wheat, and thermos. Those
products started out with an arbitrary, trademark
significance, but their meanings changed in the mind of the
consumer and they became ordinary words.
Trademark dilution focuses not on the protection of the consumer
from confusion (the traditional objective of trademark
infringement law), but upon protection of the trademark asset
in the hands of the trademark holder. [See Gilbert/Robinson
Inc. v. Carrie Beverage-Missouri Inc. (E.D. Mo. 1991) 758 F.
Supp. 512, 527.] Dilution theory has two goals: (a) "to
eliminate any 'risk of an erosion of the public's
identification of [a] very strong mark,' " and (b) "to prevent
another user from 'diminishing [a mark's] distinctiveness,
uniqueness, effectiveness, and prestigious connotations.' "
[(Elvis Presley Enters., Inc. v. Capece (S.D. Tex. 1996) 950
F. Supp. 783, 797 (quoting Tiffany & Co. v. Boston Club, Inc.
(D. Mass. 1964) 231 F. Supp. 836, 844), rev'd and remanded on
different grounds, 141 F.3d 188 (5th Cir. 1998).]
Whether or not a mark is popularly identified as genericized,
the owner of the mark may still be able to enforce the
proprietary rights which attach to the use or registration of
the mark so long as the mark continues to exclusively identify
the owner as the commercial origin of the applicable products
or services. If the mark does not perform this essential
function and it is no longer possible to legally enforce
rights in relation to the mark, the mark becomes part of the
public domain and can be commercially exploited by any person.
"TASER" is, in fact, a registered trademark and specifically
refers to products made by TASER International; however, the
word "taser" has come to mean any ECD. In this sense, "TASER"
has the ubiquitous product-specific brand recognition similar
to "Q-Tips" and "Xerox." In an effort to protect its
registered trademark from further dilution, TASER
International has issued the following guidelines on the
company Web site:
"The word 'TASER' shall only be used to reference the company
TASER International or as an adjective to describe one of the
company' products . . . The letters in 'TASER' must always be
written in block capital letters whether used in the trademark
or the name of the company. The words 'Taser' and 'taser' are
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both incorrect. The word TASER shall never be used
generically to describe any electronic control device or stun
gun. . . . Always use a TASER trademark as an adjective, not a
noun or verb. Words such as 'TASER device,' 'TASER
technology,' or 'TASER weapon' are correct, but 'TASER' alone
is not. Instead of, 'The officer shot his taser' use, 'The
officer deployed his TASER device.' "
[http://www.taser.com/LEGAL/Pages/trademarks.aspx (as of March
6, 2009).]
The California Penal Code uses the word "taser" generically.
Given the fact that TASER is actually a registered brand of
ECD, this is an incorrect usage of the word.
5)Argument in Support : According to TASER International, "AB
322 will replace the term 'taser' with 'electronic control
device' in the appropriate sections throughout the Penal Code.
TASER is a brand name and does not describe the device
itself. We, therefore, request as a matter of good public
policy that the appropriate code sections refer to Electronic
Control Devices (ECD)."
6)Prior Legislation : AB 157 (Levine), of the 2005-06 Legislative
Session, defined a "taser." AB 157 was never heard by this
Committee and returned to the Chief Clerk of the Assembly.
REGISTERED SUPPORT / OPPOSITION :
Support
TASER International
Opposition
None received
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744