Third Substitute S.B. 239

This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 3:07 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 3:08 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 3:09 PM by rday. --> This document includes House Floor Amendments incorporated into the bill on Wed, Mar 3, 2004 at 10:36 PM by kholt. --> This document includes House Floor Amendments incorporated into the bill on Wed, Mar 3, 2004 at 10:40 PM by kholt. -->

Senator Mike Dmitrich proposes the following substitute bill:

1 UNFAIR BUSINESS PRACTICES
2 2004 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Mike Dmitrich

5 Ron Allen

Curtis S. Bramble

6
7 LONG TITLE
8 General Description:
9 This bill enacts provisions within the Utah Criminal Code related to unfair competition.
10 Highlighted Provisions:
11 This bill:
12 . defines unfair competition; and
13 . provides a private right of action for a person injured by unfair competition.
14 Monies Appropriated in this Bill:
15 None
16 Other Special Clauses:
17 None
18 Utah Code Sections Affected:
19 ENACTS:
20 13-5a-101, Utah Code Annotated 1953
21 13-5a-102, Utah Code Annotated 1953
22 13-5a-103, Utah Code Annotated 1953
23
24 Be it enacted by the Legislature of the state of Utah:
25 Section 1. Section 13-5a-101 is enacted to read:

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House Floor Amendments 3-3-2004 kh/tcl

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Senate 2nd Reading Amendments 3-1-2004 rd/tcl 26

CHAPTER 5a. UNFAIR COMPETITION ACT
27 13-5a-101. Title.
28 This chapter is known as the "Unfair Competition Act."
29 Section 2. Section 13-5a-102 is enacted to read:
30 13-5a-102. Definitions.
31 As used in this chapter:
32 (1) "Control" means:
33 (a) ownership of more than 5% of the voting shares or ownership interests of an entity;
34 (b) the power to vote more than 5% of the voting shares of an entity; or
35 (c) the ability to influence the management of an entity.
35a H (2) "CYBER-TERRORISM" MEANS:
35b (a) THE UNLAWFUL USE OF COMPUTING RESOURCES TO INTIMIDATE OR COERCE
35c OTHERS;
35d (b) ACCESSING A COMPUTER WITHOUT AUTHORIZATION OR EXCEEDING AUTHORIZED
35e ACCESS,
35f (c) WILLFULLY COMMUNICATING, DELIVERING, OR CAUSING THE TRANSMISSION OF A
35g PROGRAM, INFORMATION, CODE, OR COMMAND WITHOUT AUTHORIZATION OR EXCEEDING
35h AUTHORIZED ACCESS;
35i (d) INTENTIONALLY OR RECKLESSLY:
35j (i) INTENDS TO DEFRAUD OR MATERIALLY CAUSE DAMAGE OR DISRUPTION TO ANY
35k COMPUTING RESOURCES OR TO THE OWNER OF ANY COMPUTING RESOURCES; OR
35l (ii) INTENDS TO MATERIALLY CAUSE DAMAGE OR DISRUPTION TO ANY COMPUTING
35m RESOURCES INDIRECTLY THROUGH ANOTHER PARTY'S COMPUTING RESOURCES. h
36 H [ (2) ] (3) h "Depository institution" is as defined in Section 7-1-103 .
37 H [ (3) ] (4 h (a) Except as provided in Subsection H [ (3) ] (4) [ S [(b)] (c) s ] (b) h , " unfair
37a1 competition " means H [a] AN INTENTIONAL h
37a business
38 act or practice that:
39 (i) H (A) h is unlawful, unfair, or fraudulent; and
40 H [ (ii) ] (B) h leads to a material diminution in value of intellectual property H [ . ] ; AND
40a (ii) IS ONE OF THE FOLLOWING: h
40a S H [ (b ) "UNFAIR COMPETITION" INCLUDES:
40b (i) DAMAGING AN INTERNET WEBSITE;
40c (ii) COMPUTER HACKING;] h
40d H [ (iii) ] (A) h CYBER-TERRORISM;
40e H [ (iv) MISUSE ] (B) INFRINGEMENT h OF A PATENT, TRADEMARK, OR TRADE NAME ;

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House Floor Amendments 3-3-2004 kh/tcl 40f

H [ (v) ] (C) h A SOFTWARE LICENSE VIOLATION ;
40g H [ (vi) MISUSE OF AN INTERNET DOMAIN NAME ;
40h (vii) MISLEADING INTERNET DOMAIN NAME DIRECTIONS ; ] OR h
40i H [ (viii) ] (D) h PREDATORY HIRING PRACTICES H [ ;
40j (ix) ENCOURAGING A PERSON TO VIOLATE A PROVISION OF AN EMPLOYMENT CONTRACT
40k THAT PROHIBITS COMPETITION OR DISCLOSURE; OR
40l (x) MAKING FALSE OR MISLEADING CLAIMS ] h .
41 [ (b) ] H [ (c) ] h s
41 (b) Notwithstanding S [ Subsection ] H [ SUBSECTIONS ] SUBSECTION h s H [ (3) ] (4) h (a)
41a S H [ OR (b) ] h s , "unfair
41a competition" does not include the
42 departure and hiring of an employee by a competitor.
43 Section 3. Section 13-5a-103 is enacted to read:
44 13-5a-103. Private action for unfair competition.
45 (1) (a) Except as provided in Subsection (2), a person injured by unfair competition
46 may bring a private cause of action against a person who engages in unfair competition.

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Senate 2nd Reading Amendments 3-1-2004 rd/tcl 47

(b) In an action under this Subsection (1), a person injured by unfair competition may
48 recover:
49 (i) actual damages;
50 (ii) costs and attorney fees; and
51 (iii) if the court determines that the circumstances are appropriate, punitive damages.
52 (2) A person may not bring an action described in Subsection (1) against:
53 (a) a depository institution; or
54 (b) an entity that:
55 (i) controls a depository institution;
56 (ii) is controlled by an entity that controls a depository institution; or

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- 3 - 57 (iii) is controlled by a depository institution.