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CORRECTION OF ERRORS IN CERTIFICATES 2 SEX. 218. The Administrator may correct any error in a registration 3 incurred through the fault of the Office, or, upon payment of the re4 quired fee, any error of a clerical or typographical nature not the fault 5 of the Office occurring in good faith, by a certificate of correction under 6 seal. Such registration, together with the certificate, shall thereafter 7 have the same effect as if the same had been originally issued in such 8 corrected form.
OWNERSHIP AND TRANSFER 10 SEC. 219. (a) The property right in a design subject to protection 11 under this title shall vest in the author, the legal representatives of a 12 deceased author or of one under legal incapacity, the employer for 13 whom the author created the design in the case of a design made 14 within the regular scope of the author's employment, or a person to 15 whom the rights of the author or of such employer have been trans16 ferred. The person or persons in whom the property right is vested 17 shall be considered the proprietor of the design. 18 (b) The property right in a registered design, or a design for which 19 an application for registration has been or may be filed, may be as20 signed, granted, conveyed, or mortgaged by an instrument in writing, 21 signed by the proprietor, or may be bequeathed by will.
(c) An acknowledgement as provided in section 311 shall be prima 23 facie evidence of the execution of an assignment, grant, conveyance, 24 or mortgage. 25 (d) An assignment, grant, conveyance, or mortgage shall be void
as against any subsequent purchaser or mortgage for a valuable con-
REMEDY FOR INFRINGEMENT
fringement by civil action instituted after issuance of a certificate of 33 registration of the design. 34 (b) The proprietor of a design may have judicial review of a final 35 refusal of the Administrator to register the design, by a civil action
brought as for infringement if commenced within the time specified 37 in section 212(«), and shall have remedy for infringement by the same
action if the court adjudges the design subject to protection under this 39 title: Provided, That (1) he has previously duly filed and duly pros
4 5 6
8 9 10 11
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ecuted to such final refusal an application in proper form for registration of the designs, and (2) he causes a copy of the complaint in 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 FRAL'DU' LENTLY OBTAINED SEC. 224. Any person who shall bring an action for infringement knowing that registration of the design was obtained by a false or
75 i fraudulent representation materially affecting the rights under this 2 title, shall be liable in the sum of $1,000, or such part thereof as the 3 court may determine, as compensation to the defendant, to be charged 4 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 6 court.
PENALTY FOR FALSE MARKING 8 SEC. 225. (a) Whoever, for the purpose of deceiving the public, 9 marks upon, or applies to, or uses in advertising in connection with any 10 article made, used, distributed, or sold by him, the design of which u is not protected under this title, a design notice as specified in section 12 306 or any other words or symbols importing that the design is pro13 tected under this title, knowing that the design is not so protected, 14 shall be fined not more than $500 for every such offense. 15 (b) Any person may sue for the penalty, in which event, one-half 16 shall go to the person suing and the other to the use of the United States.
PENALTY FOR FALSE REPRESENTATION 19 SEC. 2.26. Whoever knowingly makes a false representation mate20 rially affecting the rights obtainable under this title for the purpose 21 of obtaining registration of a design under this title shall be fined 22 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.
RELATION TO COPYRIGHT LAW 25 SEC. 227. (a) Nothing in this title shall affect any right or remedy 26 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 orna29 mental design of a useful article, by the copyright proprietor or under 30 an express license from him, the design shall be eligible for protection 31 under the provisions of this title.
RELATION TO PATENT LAW SEC. 228. (a) Nothing in this title shall affect any right or remedy 34 available to or held by any person under title 35 of the United States 35 Code.
(b) The issuance of a design patent for an ornamental design for 37 an article of manufacture under said title 35 shall terminate any pro38 tection of the design under this title.
COMMON LAW AND OTHER RIGHTS I'NAFFECTED 40 Sec. 229. Nothing in this title shall annul or limit (1) common law 41 or other rights or remedies, if any, available to or held by any person
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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 against unfair competition.
5 Sec. 230. The Administrator and Office of the Administrator re
ferred to in this title shall be such officer and office as the President 7 may designate.
9 SEC. 231. If any provision of this title or the application of such 10 provision to any person or circumstance is held invalid, the remainder 11 of the title or the application to other persons or circumstances shall 12 not be affected thereby. 13
AMENDMENT OF OTHER STATUTES 14 SEC. 232. (a) Subdivision a(2) of section 70 of the Bankruptcy 15 Act of July 1, 1898, as amended (11 U.S.C. 110(a)), is amended 16 by inserting “designs," after “patent rights”. 17 (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 manu28 factured by or for the United States without license of the owner 29 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 31 Claims for the recovery of his reasonable and entire compensation 32 for such use and manufacture. 33 “For the purposes of this section, the use or manufacture of a 34 registered design or an invention described in and covered by a patent 35 of the United States by a contractor, a subcontractor, or any person, 36 firm, or corporation for the Government and with the authorization 37 or consent of the Government, shall be construed as use or manufac38 ture 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 l'nited 41 States of any article owned, leased, used by, or in the possession of
i 2 3 4 5 6 7 8 9 10 11 12 13
the l’nited 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
NO RETROACTIVE EFFECT