SB 1356, as introduced, Lieu. Counterfeit goods: abatement: nonresidential premises.
Existing law provides that, until January 1, 2015, if a person is convicted for willfully manufacturing, intentionally selling, or knowingly possessing for sale any counterfeit mark, then a nonresidential building or place used by that person for the purpose of willfully manufacturing, intentionally selling, or knowingly possessing for sale any counterfeit of a registered mark is a nuisance that shall be enjoined, abated, and prevented, whether it is a public or private nuisance, and specified civil remedies may be applied. Existing law requires that the owner of the property be provided with 30 days notice prior to the filing of an action to abate a nuisance under these provisions. Under existing law, a district attorney, county counsel, city attorney, or city prosecutor that maintains an action or actions to enjoin, abate, or prevent a nuisance pursuant to these provisions was required to report to the Legislature by October 1, 2013, on their use of the provisions and their effectiveness.
This bill instead would provide that any nonresidential building or place used to willfully manufacture, intentionally sell, or knowingly possess for sale any counterfeit goods shall be deemed a nuisance which may be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance, and that specified civil penalties shall apply. The bill would remove the requirement that the owner of the property be provided 30 days notice prior to the filing of an action to abate a nuisance under these provisions, and also would delete the above-described reporting requirements. It would repeal the date upon which the remaining provisions would become inoperative, thus extending them indefinitely.
This bill would allow a court to award costs, including the costs of investigation and discovery, and reasonable attorney’s fees, which are not compensated for pursuant to some other provision of law, to the prevailing party in any case in which a governmental agency seeks to enjoin the use of a nonresidential building or place, or seeks to enjoin in or upon any nonresidential building or place the unlawful manufacturing, selling, or possession for sale of any counterfeit goods.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 17800 of the Business and Professions
2Code is amended to read:
(a) begin deleteIf there is a conviction for a violation of Section begin insertA nonresidential end insert
4653w or paragraph (2) of subdivision (a) of Section 350 of the
5Penal Code by any person, then a nonresidential end delete
6building or place usedbegin delete by that personend delete for the purpose of willfully
7manufacturing, intentionally selling, or knowingly possessing for
8sale any counterfeit goods shall be deemed a nuisance which may
9be enjoined, abated, and prevented, and for which damages may
10be recovered, whether it is a public or private nuisance. The
11remedies and procedures provided in Article 2 (commencing
with
12Section 11225) of Chapter 3 of Title 1 of Part 4 of the Penal Code
13begin delete mayend deletebegin insert shallend insert be applied by the court. For purposes of this section, an
14abatement under Section 11230 of the Penal Code is discretionary
15rather than mandatory and may be for a period up to one year.
16(b) An owner shall be provided with 30 days’ notice prior to
17the filing of an action to abate a nuisance under the provisions of
18this section.
19(c)
end delete
20begin insert(b)end insert As used in this chapter, “counterfeit goods” means (1) any
21counterfeit of a mark registered with the Secretary of State or
22registered on the Principal Register of the United States Patent and
P3 1Trademark Office or (2) any recording or audiovisual work, the
2cover, box, jacket, or label of which does not disclose the
3information as specified in subdivision (a) of Section 653w of the
4Penal Code.
Section 17801 of the Business and Professions Code
6 is repealed.
A district attorney, county counsel, city attorney, or
8city prosecutor that maintains an action or actions to enjoin, abate,
9or prevent a nuisance pursuant to the provisions of this chapter
10shall report to the Senate and Assembly Committees on Judiciary,
11by October 1, 2013, on their use of the provisions of this chapter
12and their effectiveness. The report shall include, but not be limited
13to, all of the following:
14(a) The frequency of use of the nuisance abatement provisions
15as well as statistics on whether the use of the abatement provisions
16correlates with a decrease in the use of criminal penalties.
17(b) Any statistics or information concerning the impact of the
18use of these provisions on counterfeiting overall, both in the
19
relevant county or city and overall.
Section 17802 of the Business and Professions Code
21 is repealed.
This chapter shall remain in effect only until January
231, 2015, and as of that date is repealed, unless a later enacted
24statute, that is enacted before January 1, 2015, deletes or extends
25that date.
Section 3496 of the Civil Code is amended to read:
In any of the following described cases, the court may
28award costs, including the costs of investigation and discovery,
29and reasonable attorney’s fees, which are not compensated for
30pursuant to some other provision of law, to the prevailing party:
31(a) In any case in which a governmental agency seeks to enjoin
32the sale, distribution, or public exhibition, for commercial
33consideration, of obscene matter, as defined in Section 311 of the
34Penal Code.
35(b) In any case in which a governmental agency seeks to enjoin
36the use of a building or place for the purpose of illegal gambling,
37lewdness, assignation, human trafficking, or prostitution; or any
38case in which a governmental agency seeks to enjoin acts of illegal
39gambling,
lewdness, assignation, human trafficking, or prostitution
40in or upon a building or place, as authorized in Article 2
P4 1(commencing with Section 11225) of Chapter 3 of Title 1 of Part
24 of the Penal Code.
3(c) In any case in which a governmental agency seeks to enjoin
4the use of a building or place, or seeks to enjoin in or upon any
5building or place the unlawful sale, manufacture, service, storage,
6or keeping or giving away of any controlled substance, as
7authorized in Article 3 (commencing with Section 11570) of
8Chapter 10 of Division 10 of the Health and Safety Code.
9(d) In any case in which a governmental agency seeks to enjoin
10the unlawful sale, service, storage, or keeping or giving away of
11alcoholic liquor, as authorized in Article 1 (commencing with
12Section 11200) of Chapter 3 of Title 1 of Part 4 of the Penal Code.
13(e) In any case in which a governmental agency seeks to enjoin
14the use of a nonresidential building or place, or seeks to enjoin in
15or upon any nonresidential building or place the unlawful
16manufacturing, selling, or possession for sale of any counterfeit
17goods as authorized in Chapter 4 (commencing with Section 17800)
18of Part 3 of Division 7 of the Business and Professions Code or
19Section 11226 of the Penal Code.
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