U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

amended section

1201(a)(1)(C) by deleting "on the record." Pub. L. No. 106-113, 113

Stat. 1501, app. I at 1501A-594.

3 In 1999, section 1202 was amended by inserting "category of works"

for "category or works," in subsection (e)(2)(B). Pub. L. No. 106-44,

113 Stat. 221, 222.

4 The Satellite Home Viewer Improvement Act of 1999 amended section

1203(c)(5)(B) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app.

I at 1501A-593.

5 The Satellite Home Viewer Improvement Act of 1999 amended section

1204(b) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at

1501A-593.

Chapter 13 [1]

Protection of Original Designs

Designs protected Designs not subject to protection Revisions, adaptations, and rearrangements Commencement of protection Term of protection Design notice Effect of omission of notice Exclusive rights Infringement Application for registration Benefit of earlier filing date in foreign country Oaths and acknowledgments

Examination of application and issue or refusal of

registration

Certification of registration Publication of announcements and indexes Fees Regulations Copies of records Correction of errors in certificates Ownership and transfer Remedy for infringement Injunctions Recovery for infringement Power of court over registration Liability for action on registration fraudulently obtained Penalty for false marking Penalty for false representation Enforcement by Treasury and Postal Service Relation to design patent law Common law and other rights unaffected Administrator; Office of the Administrator No retroactive effect

Section 1301. Designs protected [3]

(a) Designs Protected.

(1) In General. The designer or other owner of an original design of a

useful article which makes the article attractive or distinctive in

appearance to the purchasing or using public may secure the protection

provided by this chapter upon complying with and subject to this

chapter.

(2) Vessel Hulls. The design of a vessel hull, including a plug or mold,

is subject to protection under this chapter, notwithstanding section

1302(4).

(b) Definitions. For the purpose of this chapter, the following terms

have the following meanings:

(1) A design is "original" if it is the result of the designer's

creative endeavor that provides a distinguishable variation over prior

work pertaining to similar articles which is more than merely trivial

and has not been copied from another source.

(2) A "useful article" is a vessel hull, including a plug or mold, which

in normal use has an intrinsic utilitarian function that is not merely

to portray the appearance of the article or to convey information. An

article which normally is part of a useful article shall be deemed to be

a useful article.

(3) A "vessel" is a craft-

(A) that is designed and capable of independently steering a course on

or through water through its own means of propulsion; and

(B) that is designed and capable of carrying and transporting one or

more passengers.

(4) A "hull" is the frame or body of a vessel, including the deck of a

vessel, exclusive of masts, sails, yards, and rigging.

(5) A "plug" means a device or model used to make a mold for the purpose

of exact duplication, regardless of whether the device or model has an

intrinsic utilitarian function that is not only to portray the

appearance of the product or to convey information.

(6) A "mold" means a matrix or form in which a substance for material is

used, regardless of whether the matrix or form has an intrinsic

utilitarian function that is not only to portray the appearance of the

product or to convey information.

Section 1302. Designs not subject to protection [3]

Protection under this chapter shall not be available for a design that

is-

(1) not original;

(2) staple or commonplace, such as a standard geometric figure, a

familiar symbol, an emblem, or a motif, or another shape, pattern, or

configuration which has become standard, common, prevalent, or ordinary;

(3) different from a design excluded by paragraph (2) only in

insignificant details or in elements which are variants commonly used in

the relevant trades;

(4) dictated solely by a utilitarian function of the article that

embodies it; or

(5) embodied in a useful article that was made public by the designer or

owner in the United States or a foreign country more than 2 years before

the date of the application for registration under this chapter.

Section 1303. Revisions, adaptations, and rearrangements

Protection for a design under this chapter shall be available

notwithstanding the employment in the design of subject matter excluded

from protection under section 1302 if the design is a substantial

revision, adaptation, or rearrangement of such subject matter. Such

protection shall be independent of any subsisting protection in subject

matter employed in the design, and shall not be construed as securing

any right to subject matter excluded from protection under this chapter

or as extending any subsisting protection under this chapter.

Section 1304. Commencement of protection

The protection provided for a design under this chapter shall commence

upon the earlier of the date of publication of the registration under

section 1313(a) or the date the design is first made public as defined

by section 1310(b).

Section 1305. Term of protection

(a) In General. Subject to subsection (b), the protection provided under

this chapter for a design shall continue for a term of 10 years

beginning on the date of the commencement of protection under section

1304.

(b) Expiration. All terms of protection provided in this section shall

run to the end of the calendar year in which they would otherwise

expire.

(c) Termination of Rights. Upon expiration or termination of protection

in a particular design under this chapter, all rights under this chapter

in the design shall terminate, regardless of the number of different

articles in which the design may have been used during the term of its

protection.

Section 1306. Design notice

(a) Contents of Design Notice.

(1) Whenever any design for which protection is sought under this

chapter is made public under section 1310(b), the owner of the design

shall, subject to the provisions of section 1307, mark it or have it

marked legibly with a design notice consisting of

(A) the words "Protected Design", the abbreviation "Prot'd Des.", or the

letter "D" with a circle, or the symbol "D";

(B) the year of the date on which protection for the design commenced;

and

(C) the name of the owner, an abbreviation by which the name can be

recognized, or a generally accepted alternative designation of the

owner.

Any distinctive identification of the owner may be used for purposes of

subparagraph (C) if it has been recorded by the Administrator before the

design marked with such identification is registered.

(2) After registration, the registration number may be used instead of

the elements specified in subparagraphs (B) and (C) of paragraph (1).

(b) Location of Notice. The design notice shall be so located and

applied as to give reasonable notice of design protection while the

useful article embodying the design is passing through its normal

channels of commerce.

(c) Subsequent Removal of Notice. When the owner of a design has

complied with the provisions of this section, protection under this

chapter shall not be affected by the removal, destruction, or

obliteration by others of the design notice on an article.

Section 1307. Effect of omission of notice

(a) Actions with Notice. Except as provided in subsection (b), the

omission of the notice prescribed in section 1306 shall not cause loss

of the protection under this chapter or prevent recovery for

infringement under this chapter against any person who, after receiving

written notice of the design protection, begins an undertaking leading

to infringement under this chapter.

(b) Actions without Notice. The omission of the notice prescribed in

section 1306 shall prevent any recovery under section 1323 against a

person who began an undertaking leading to infringement under this

chapter before receiving written notice of the design protection. No

injunction shall be issued under this chapter with respect to such

undertaking unless the owner of the design reimburses that person for

any reasonable expenditure or contractual obligation in connection with

such undertaking that was incurred before receiving written notice of

the design protection, as the court in its discretion directs. The

burden of providing written notice of design protection shall be on the

owner of the design.

Section 1308. Exclusive rights

The owner of a design protected under this chapter has the exclusive

right to-

(1) make, have made, or import, for sale or for use in trade, any useful

article embodying that design; and

(2) sell or distribute for sale or for use in trade any useful article

embodying that design.

Section 1309. Infringement

(a) Acts of Infringement. Except as provided in subsection (b), it shall

be infringement of the exclusive rights in a design protected under this

chapter for any person, without the consent of the owner of the design,

within the United States and during the term of such protection, to-

(1) make, have made, or import, for sale or for use in trade, any

infringing article as defined in subsection (e); or

(2) sell or distribute for sale or for use in trade any such infringing

article.

(b) Acts of Sellers and Distributors. A seller or distributor of an

infringing article who did not make or import the article shall be

deemed to have infringed on a design protected under this chapter only

if that person-

(1) induced or acted in collusion with a manufacturer to make, or an

importer to import such article, except that merely purchasing or giving

an order to purchase such article in the ordinary course of business

shall not of itself constitute such inducement or collusion; or

(2) refused or failed, upon the request of the owner of the design, to

make a prompt and full disclosure of that person's source of such

article, and that person orders or reorders such article after receiving

notice by registered or certified mail of the protection subsisting in

the design.

(c) Acts without Knowledge. It shall not be infringement under this

section to make, have made, import, sell, or distribute, any article

embodying a design which was created without knowledge that a design was

protected under this chapter and was copied from such protected design.

(d) Acts in Ordinary Course of Business. A person who incorporates into

that person's product of manufacture an infringing article acquired from

others in the ordinary course of business, or who, without knowledge of

the protected design embodied in an infringing article, makes or

processes the infringing article for the account of another person in

the ordinary course of business, shall not be deemed to have infringed

the rights in that design under this chapter except under a condition

contained in paragraph (1) or (2) of subsection (b). Accepting an order

or reorder from the source of the infringing article shall be deemed

ordering or reordering within the meaning of subsection (b)(2).

(e) Infringing Article Defined. As used in this section, an "infringing

article" is any article the design of which has been copied from a

design protected under this chapter, without the consent of the owner of

the protected design. An infringing article is not an illustration or

picture of a protected design in an advertisement, book, periodical,

newspaper, photograph, broadcast, motion picture, or similar medium. A

design shall not be deemed to have been copied from a protected design

if it is original and not substantially similar in appearance to a

protected design.

(f) Establishing Originality. The party to any action or proceeding

under this chapter who alleges