[16] See, for example, www.sec.gov/news/public-statement/statement-clayton-2017-12-11 (Statement on Cryptocurrencies and Initial Coin Offerings); www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets (framework for the analysis of digital assets in the context of “investment contracts”); www.sec.gov/news/public-statement/enforcement-tm-statement-potentially-unlawful-online-platforms-trading (Statement on Potentially Illegal Online Digital Asset Trading Platforms); www.sec.gov/news/public-statement/digital-asset-securites-issuuance-and-trading (Statement on the Issuance and Trading of Digital Assets). SEC staff statements represent the views of SEC staff. These are not SEC rules, regulations, or statements. The SEC neither approved nor rejected its contents. SEC employee statements, like all SEC personnel guidelines, have no legal force or effect: they do not modify or supplement applicable law and do not create any new or additional obligations for anyone. The Third Judicial District recently had to decide whether a “joint statement” between Germany and the United States on the settlement of the Holocaust establishes a private right of action for alleged violations against Germany to pay interest on the DM 10 billion settlement fund. The interesting question is whether the document should be interpreted as creating a private right of action based on federal customary law or “international treaty law”. In Gross v. Deutsche Stiftung Industrie, the third circle concluded that the joint declaration was a treaty, not a contract. As outlined in the 2019 CVC guidelines, a number of digital asset related activities qualify a person as an MSB that would be regulated by FinCEN. FinCEN`s BSA regulations also provide that any person “registered with the SEC or CFTC and functionally regulated or audited by it”[15] is not subject to the BSA requirements applicable to MSBs, but to the BSA requirements of such a regulated entity. Even if an introducing dealer, futures dealer, securities dealer or mutual fund acts as a digital asset exchanger and provides money transfer services for the purposes of the BSA, it would not qualify as a transmitter of funds or any other class of MSB and would not be subject to the requirements of the BSA that apply only to MSBs.
Instead, these individuals would be subject to FinCEN regulations that apply to introducing dealers, futures commission dealers, broker-dealers and mutual funds. These obligations include the development of an anti-money laundering program and suspicious activity reporting requirements, as well as requirements under applicable CFTC or SEC rules. In addition, all financial institutions that trade digital assets that meet the definition of “securities” under federal law, regardless of the federal functional regulator, must comply with the federal Securities Act. The bill defines “infringing marks” in two places — in the proposed Penal Code Amendment, 18 U.S.C. 2320(d), and in the proposed Lanham Act Amendment, 15 U.S.C. 1116(d)(1)(B). This definition is important for three reasons. First, it helps define the conduct for which the criminal penalties of this law can be imposed. See proposal 18 U.S.C. 2320(a).
Second, it refers to the cases in which ex parte seizures are permitted under this Act. See proposal 15 U.S.C. 1116(d)(1)(A). Finally, it helps to define the circumstances in which damages or triple profits and attorneys` fees should be awarded in Lanham Act cases, unless there are mitigating circumstances. See proposal 15 U.S.C. 1117(b). [12] “Money” is defined in 31 CFR § 1010.100(m) as “the currency and paper money of the United States or any other country, designated as legal tender, circulating in the issuing country and habitually used and accepted as a medium of exchange.” The nature of the digital asset activities in which an individual is involved is a key factor in deciding whether and how that person should register with the CFTC, FinCEN or SEC. For example, certain “commodity” activities may trigger registration and other obligations under the Commodity Exchange Act (CEA), while certain activities involving a “security” may trigger registration and other obligations under federal securities laws. If a person meets the definition of a “financial institution”, their AML/CFT activities for BSA purposes are supervised by one or more agencies (and possibly others).
For example, the AML/CFT activities of a commission futures trader are monitored by the CFTC, FinCEN and the National Futures Association (NFA). those of an MSB are overseen by FinCEN; and those of a securities dealer are overseen by the SEC, FinCEN and a self-regulatory organization, primarily the Financial Industry Regulatory Authority (FINRA). For technical reasons, the two definitions of “counterfeit trademark” differ slightly in concept, but have identical content. The Lanham Act already contains a definition of “counterfeiting”: a “false mark that is identical or practically indistinguishable from a registered trademark”. 15 U.S.C. 1127. As part of the Lanham Act, the definition of “counterfeit trademark” in proposed subparagraph 1116(l)(B) includes the definition in section 1127. In contrast, existing federal criminal laws do not include a definition of “counterfeiting” with respect to trademarks; The amendment to Division 18 therefore clarifies the elements contained in the definition of “counterfeiting” in section 1127. (As the Senate bill suggested, “false” means “not genuine.”) For the purposes of this Joint Statement, “digital assets” include instruments that may be considered securities, commodities and commodity-based securities or instruments such as futures or swaps under applicable U.S. law. We are aware that market participants refer to digital assets with many different labels.
[4] However, the label or terminology used to describe a digital asset or a person engaged in or providing financial activities or services related to a digital asset[5] may not necessarily comply with the BSA`s definition of that asset, activity or service or the laws and regulations administered by the CFTC and the SEC.