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SB 1533 UNAUTHORIZED ELECTRONIC USE OF TRADEMARK.

AMENDED IN ASSEMBLY JULY 7, 1996
AMENDED IN ASSEMBLY MAY 30, 1996
AMENDED IN SENATE APRIL 25, 1996
AMENDED IN SENATE APRIL 8, 1996

INTRODUCED BY Senator Calderon

FEBRUARY 14, 1996

{- An act to add Title 7 (commencing with Section 3428) to Part 1 of Division 4 of the Civil Code, relating to property. -} {+ An act to add Part 7.1 (commencing with Section 15247) to the Government Code, relating to the death penalty. +}

LEGISLATIVE COUNSEL'S DIGEST

SB 1533, as amended, Calderon. {- Unauthorized electronic use of trademark -} {+ Office of Postconviction Counsel +}.

Existing law provides for the {- registration and protection of trademarks and trade names -} {+ State Public Defender to represent indigents upon appointment or request, as specified, in certain appeals of criminal and juvenile court proceedings, including a proceeding of any nature after a judgment of death has been rendered +} .

This bill would {- provide that the unauthorized use of another's registered trademark as a domain name on any computer network or information system which accepts and relays electronic mail into computers situated in this state constitutes an act of unfair competition, as provided. This bill would provide that the failure of a person to release the use of the trademark upon demand from the owner shall be grounds for the issuance of an immediate injunction, and an award of specified damages and costs. This bill would also provide that an Internet service provider may remove a domain name that is a registered trademark from a computer information or network system without specified liability if the removal is based on information that the use is without the consent of the owner, as specified. The bill would also provide a definition of "Internet." -} {+ create the Office of Postconviction Counsel to represent any indigent person convicted and sentenced to death in this state, as specified. The bill would also declare the intent of the Legislature in this regard. +}

Vote: majority. Appropriation: no. Fiscal committee: {- no -} {+ yes +} . State-mandated local program: no.

{-SECTION 1. Title 7 (commencing with Section 3428) -} {+SECTION 1. Part 7.1 (commencing with Section 15427) is added to the Government Code, to read:

PART 7.1. OFFICE OF POSTCONVICTION COUNSEL

15427. It is the intent of the Legislature in enacting this section to provide a mechanism consistent with Section 2261 of Title 22 of the United States Code for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel for any person convicted and sentenced to death in this state who is unable to secure counsel on account of indigency, so that postconviction proceedings to challenge that conviction and sentence may be commenced in a timely manner and so as to assure the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interest of justice.

15428. (a) There is hereby created in state government an Office of Postconviction Counsel, which shall be managed by a Postconviction Counsel who shall be responsible for the day-to-day operations of the office.

(b) The Postconviction Counsel shall be appointed for a term of four years commencing on January 1, 1997, and shall serve until the appointment and qualifications of his or her successor. Any vacancy shall be filled for the balance of the unexpired term.

(c) The Postconviction Counsel shall be, and shall have been, a member of the State Bar during the seven years preceding appointment, and shall have had substantial experience in criminal proceedings, either in state or federal court.

(d) The Postconviction Counsel shall receive the salary provided for by Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of Title 2.

(e) The Postconviction Counsel shall report annually to the Governor, the Legislature, and the Supreme Court on the status of his or her office's cases and the appointment of counsel for indigent persons in postconviction capital cases.

(f) The Postconviction Counsel is authorized to do all of the following:
(1) Employ deputies and other employees, and establish and operate offices, as may be necessary for the proper performance of his or her duties.
(2) Develop and recommend to the Governor and Legislature an annual budget for the office.
(3) Promulgate rules to address conflicts of interest in legal representations.
(4) Establish agreements with the State Bar, local bar associations, law firms, and private counsel designed to encourage representation of indigent persons in postconviction capital proceedings.
(5) Promulgate standards for evaluating the performance of the attorneys in the office.

(g) The Postconviction Counsel shall also be authorized to contract with private attorneys and nonprofit corporations organized to furnish legal services to persons who are not financially able to employ counsel, and law schools that have established a clinical program devoted to representation of indigent persons in postconviction proceedings, and to pay a reasonable sum for those services pursuant to those contracts.

The attorneys and organizations shall serve under the supervision and control of the Postconviction Counsel and shall be compensated for their services under those contracts.

15428.1. (a) The primary responsibility of the Office of Postconviction Counsel shall be to represent any person convicted and sentenced to death in this state, who is without counsel and who is determined by a court of competent jurisdiction to be indigent, for the purpose of instituting and prosecuting postconviction actions in the state and federal courts and challenging the legality of the judgment or sentence imposed against that person. A determination of indigency by any trial court of this state for purposes of representation by the public defender shall establish a rebuttable presumption of indigency for purposes of representation by the office.

(b) The office shall file motions seeking compensation for representation and reimbursement for expenses pursuant to Section 3006A of Title 18 of the United States Code when providing representation to indigent persons in the federal courts, and shall deposit all those payments with the office.

15428.2. (a) Any indigent represented by the Office of Postconviction Counsel shall be entitled to the appointment of a counsel who meets the following standards, or is supervised by an attorney who meets the following standards:
(1) Five years experience in litigation in criminal proceedings in the state or federal courts.
(2) Completion of three approved criminal training programs.
(3) Participation in six felony cases at the trial, appellate, or postconviction level, one of which involved a homicide and in three of which the attorney served as lead counsel.

(b) Where the Supreme Court appoints a postconviction counsel other than from the Office of Postconviction Counsel, that counsel shall meet the standards set forth in subdivision (a), or be supervised by an attorney who meets those standards.

15428.3. The Office of Postconviction Counsel may issue any regulations and take any actions as may be necessary for proper implementation of this part.

15428.4. (a) The Supreme Court shall appoint the Office of Postconviction Counsel to represent an indigent person in postconviction proceedings in capital cases in the state courts, except as follows: (1) When the Office of Postconviction Counsel has refused to represent the person because of a conflict of interest or other reason. (2) When the court, in its discretion, appoints the attorney who represented the person at his or her trial or on direct appeal but only when the person expressly requests that attorney to represent him or her and the attorney expressly consents to the appointment. (3) When the court appoints any other attorney in unusual cases, where good cause exists.

(b) Where an application for appointment of counsel is made under this section, the Supreme Court shall enter an order containing one of the following:
(1) Appointment of one or more counsel to represent the person in postconviction state proceedings upon a finding that the person is indigent and has accepted the offer of postconviction counsel or is unable to competently decide whether to accept or reject the offer.
(2) A finding, after a hearing if necessary, that the person rejected the offer of postconviction counsel and made the decision with an understanding of its legal consequences.
(3) Denial of appointment of postconviction counsel upon a finding that the person is not indigent.

(c) If counsel other than the Office of Postconviction Counsel is appointed pursuant to this section, he or she may exercise the same authority as the office under Section 15428.1.

(d) Upon appointment by the court, the Office of Postconviction Counsel or other counsel appointed for postconviction representation may represent any person who is not financially able to employ counsel in the following matters:
(1) A petition for a writ of habeas corpus or related relief with respect to a judgment of death, and any petition for writ of certiorari to the United States Supreme Court arising therefrom.
(2) A petition for executive clemency.

(e) The Supreme Court shall make the offer of postconviction representation concurrently with appointment of the State Public Defender or other counsel pursuant to Section 1240 of the Penal Code. 15428.5. The Office of Postconviction Counsel may represent indigent persons who are convicted and sentenced to death for purposes of postconviction proceedings in federal court, and may appear in any legislative, administrative, or other similar proceedings relating to appeals and postconviction proceedings in criminal matters.

15428.6. A person requesting postconviction representation shall make a financial statement under oath in the manner provided in rules adopted by the Judicial Council. +} {- is added to Part 1 of Division 4 of the Civil Code, to read:

TITLE 7. UNAUTHORIZED ELECTRONIC USE OF TRADEMARK

3428. (a) The unauthorized use of another's registered trademark as a domain name on any computer network or information system, such as the "Internet" or the "World Wide Web," which accepts and relays electronic mail into computers situated in this state shall constitute an act of unfair competition if that user fails to release that domain name upon a notice of unauthorized use and a demand from the owner of that registered trademark that the user release the domain name.

The failure of a person who uses another's registered trademark as a domain name to release the use of that trademark on any computer information or network system upon demand from the owner shall be grounds for the issuance of an immediate injunction, an award of monetary damages of not less than one thousand dollars ($1,000), and an award of costs and attorney's fees.

The notice and demand shall be sent by electronic mail and by certified mail to the user.

(b) Where a domain name on a computer information or network system is a registered trademark, an Internet service provider shall not be liable for damages or for other civil or criminal monetary penalties for the removal of that domain name from its services when the action is made in good faith and in reliance upon credible information provided by the owner of the registered trademark that the use of the registered trademark is without the owner's consent.

(c) As used in this section, "Internet" means the global information system that meets the following criteria:
(1) The system is logically linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions or follow-ons.
(2) The system is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions or follow-ons, or other IP-compatible protocols.
(3) The system provides, uses, or makes accessible, either publicly or privately, high-level services layered on the communications and related infrastructure described herein.

(d) This section shall not apply to the use of a person's own legal name or registered trademark as a domain name on any computer information or network system, such as the "Internet" or the "World Wide Web," and nothing in this section shall be construed to prohibit that use.

(e) This section shall not apply to the registration of a domain name on any computer network or information system, such as the "Internet" or the "World Wide Web," which predates the registration date of a registered trademark.

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