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ecuted to such final refusal an application in proper form for regis2 tration of the designs, and (2) he causes a copy of the complaint in

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action to be delivered to the Administrator within ten days after the commencement of the action, and (3) the defendant has committed acts in respect to the design which would constitute infringement with respect to a design protected under this title.

INJUNCTION

SEC. 221. The several courts having jurisdiction of actions under this title may grant injunctions in accordance with the principles of equity to prevent infringement, including in their discretion, prompt relief by temporary restraining orders and preliminary injunctions. RECOVERY FOR INFRINGEMENT, AND SO FORTH

SEC. 222. (a) Upon finding for the claimant the court shall award him damages adequate to compensate for the infringement, but in no event less than the reasonable value the court shall assess them. In either event the court may increase the damages to such amount, not exceeding $5,000 or $1 per copy, whichever is greater, as to the court shall appear to be just. The damages awarded in any of the above circumstances shall constitute compensation and not a penalty. The court may receive expert testimony as an aid to the determination of damages.

(b) No recovery under paragraph (a) shall be had for any infringement committed more than three years prior to the filing of the complaint.

(c) The court may award reasonable attorney's fees to the prevailing party. The court may also award other expenses of suit to a defendant prevailing in an action brought under section 220(b).

(d) The court may order that all infringing articles, and any plates, molds, patterns, models, or other means specifically adapted for making the same be delivered up for destruction or other disposition as the court may direct.

POWER OF COURT OVER REGISTRATION

SEC. 223. In any action involving a design for which protection is sought under this title, the court when appropriate may order registration of a design or the cancellation of a registration. Any such order shall be certified by the court to the Administrator, who shall make appropriate entry upon the records of his Office.

LIABILITY FOR ACTION ON REGISTRATION FRAUDULENTLY OBTAINED

SEC. 224. Any person who shall bring an action for infringement 40 knowing that registration of the design was obtained by a false or

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fraudulent representation materially affecting the rights under this title, shall be liable in the sum of $1,000, or such part thereof as the court may determine, as compensation to the defendant, to be charged against the plaintiff and paid to the defendant, in addition to such costs and attorney's fees of the defendant as may be assessed by the court.

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PENALTY FOR FALSE MARKING

SEC. 225. (a) Whoever, for the purpose of deceiving the public, marks upon, or applies to, or uses in advertising in connection with any article made, used, distributed, or sold by him, the design of which is not protected under this title, a design notice as specified in section 306 or any other words or symbols importing that the design is protected under this title, knowing that the design is not so protected, shall be fined not more than $500 for every such offense.

(b) Any person may sue for the penalty, in which event, one-half shall go to the person suing and the other to the use of the United 17 States.

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PENALTY FOR FALSE REPRESENTATION

SEC. 226. Whoever knowingly makes a false representation mate20 rially affecting the rights obtainable under this title for the purpose of obtaining registration of a design under this title shall be fined not less than $500 and not more than $1,000, and any rights or privi23 leges he may have in the design under this title shall be forfeited.

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SEC. 227. (a) Nothing in this title shall affect any right or remedy now or hereafter held by any person under title I of this Act.

(b) When a pictorial, graphic, or sculptural work in which copy28 right subsists under title I of this Act is utilized in an original ornamental design of a useful article, by the copyright proprietor or under 30 an express license from him, the design shall be eligible for protection under the provisions of this title.

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RELATION TO PATENT LAW

SEC. 228. (a) Nothing in this title shall affect any right or remedy available to or held by any person under title 35 of the United States

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SEC. 229. Nothing in this title shall annul or limit (1) common law or other rights or remedies, if any, available to or held by any person

(b) The issuance of a design patent for an ornamental design for an article of manufacture under said title 35 shall terminate any protection of the design under this title.

COMMON LAW AND OTHER RIGHTS UNAFFECTED

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with respect to a design which has not been made public as provided in section 304 (b), or (2) any trademark right or right to be protected 3 against unfair competition.

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SEC. 230. The Administrator and Office of the Administrator referred to in this title shall be such officer and office as the President may designate.

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SEVERABILITY CLAUSE

SEC. 231. If any provision of this title or the application of such provision to any person or circumstance is held invalid, the remainder of the title or the application to other persons or circumstances shall not be affected thereby.

AMENDMENT OF OTHER STATUTES

SEC. 232. (a) Subdivision a(2) of section 70 of the Bankruptcy Act of July 1, 1898, as amended (11 U.S.C. 110(a)), is amended by inserting “designs,” after “patent rights”.

(b) Title 28 of the United States Code is amended

(1) by inserting "designs," after "patents," in the first sentence of section 1338 (a);

(2) by inserting ", design," after "patent" in the second sentence of section 1338 (a);

(3) by inserting "design," after "copyright," in section 1338 (b);

(4) by inserting "and registered designs" after "copyrights" in section 1400; and

(5) by revising section 1498 (a) to read as follows:

"(a) Whenever a registered design or invention is used or manufactured by or for the United States without license of the owner

thereof or lawful right to use or manufacture the same, the owner's 30 remedy shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture.

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"For the purposes of this section, the use or manufacture of a registered design or an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.

"The court shall not award compensation under this section if the claim is based on the use or manufacture by or for the United

States of any article owned, leased, used by, or in the possession of

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the United States, prior to, in the case of an invention, July 1, 1918, and in the case of a registered design, July 1, 1978.

"A Government employee shall have the right to bring suit against the Government under this section except where he was in a position to order, influence, or induce use of the registered design or invention by the Government. This section shall not confer a right of action on any registrant or patentee or any assignee of such registrant or patentee with respect to any design created by or invention discovered or invented by a person while in the employment or service of the United States, where the design or invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials, or facilities were used."

TIME OF TAKING EFFECT

SEC. 233. This title shall take effect one year after enactment of this Act.

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NO RETROACTIVE EFFECT

SEC. 234. Protection under this title shall not be available for any design that has been made public as provided in section 204(b) prior to the effective date of this title.

SHORT TITLE

SEC. 235. This title may be cited as "The Design Protection Act of 1975".

94TH CONGRESS

1ST SESSION

H. R. 5345

IN THE HOUSE OF REPRESENTATIVES

MARCH 21, 1975

Mr. DANIELSON introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Copyright Act of 1909, and for other purposes. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Performance Rights 4 Amendment of 1975".

5 SEC. 2. The first section of title 17, United States Code, 6 is amended

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(1) by striking out "and" where it appears at the

end of subsections (c) and (d);

(2) by striking out the period at the end of sub

section (e) and inserting in lien thereof a semicolon and

"and";

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