1 2 3 4 5 6 7 8 9 10 11 12 13 14 74 from the date of the commencement of protection as provided in section 304 (a), but if a proper application for renewal is received by the Administrator during the year prior to the expiration of the five-year term, the protection herein provided shall be extended for an additional period of five years from the date of expiration of the first five years. (b) If the design notice actually applied shows a date earlier than the date of the commencement of protection as provided in section 304 (a), protection shall terminate as though the term had commenced at the earlier date. (c) Where the distinguishing elements of a design are in substantially the same form in a number of different useful articles, the design shall be protected as to all such articles when protected as to one of them, but not more than one registration shall be required. Upon 15 expiration or termination of protection in a particular design as provided in this title all rights under this title in said design shall ter17 minate, regardless of the number of different articles in which the 18 design may have been utilized during the term of its protection. 16 19 20 21 THE DESIGN NOTICE SEC. 306. (a) Whenever any design for which protection is sought under this title is made public as provided in section 304 (b), the 22 proprietor shall, subject to the provisions of section 307, mark it or have it marked legibly with a design notice consisting of the following three elements: (1) the words "Protected Design", the abbreviation "Prot'd Des." or the letter "D" within a circle, thus ; (2) the year of the date on which the design was first made public; and (3) the name of the proprietor, an abbreviation by which the name can be recognized, or a generally accepted alternative designation of the proprietor; any distinctive identification of the proprietor may be used if it has been approved and recorded by the Administrator before the design marked with such identification is made public. After registration the registration number may be used instead of the elements specified in (2) and (3) hereof. (b) The notice shall be so located and applied as to give reasonable notice of design protection while the useful article embodying the 39 design is passing through its normal channels of commerce. This re40 quirement may be fulfilled, in the case of sheetlike or strip materials 75 1 bearing repetitive or continuous designs, by application of the notice 2 to each repetition, or to the margin, selvage, or reverse side of the ma3 terial at reasonably frequent intervals, or to tags or labels affixed to 4 the material at such intervals. 5 (c) When the proprietor of a design has complied with the provi6 sions of this section, protection under this title shall not be affected by 7 the removal, destruction, or obliteration by others of the design notice on an article. 8 9 10 11 15 EFFECT OF OMISSION OF NOTICE SEC. 307. The omission of the notice prescribed in section 306 shall not cause loss of the protection or prevent recovery for infringement 12 against any person who, after written notice of the design protection, 13 begins an undertaking leading to infringement: Provided, That such 14 omission shall prevent any recovery under section 322 against a person who began an undertaking leading to infringement before receiving written notice of the design protection, and no injunction shall be 17 had unless the proprietor of the design shall reimburse said person for any reasonable expenditure or contractual obligation in connection with such undertaking incurred before written notice of design protection, as the court in its discretion shall direct. The burden of proving written notice shall be on the proprietor. 16 18 19 20 21 222 23 INFRINGEMENT SEC. 308. (a) It shall be infringement of a design protected under 24 this title for any person, without the consent of the proprietor of the design, within the United States or its territories or possessions and during the term of such protection, to— 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 (1) make, have made, or import, for sale or for use in trade, any infringing article as defined in subsection (d) hereof; or (2) sell or distribute for sale or for use in trade any such infringing article: Provided, however, That a seller or distributor of any such article who did not make or import the same shall be deemed to be an infringer only if— (i) he induced or acted in collusion with a manufacturer to make, or an importer to import such article (merely purchasing or giving an order to purchase in the ordinary course of business shall not of itself constitute such inducement or collusion); or (ii) he refuses or fails upon the request of the proprietor of the design to make a prompt and full disclosure of his source of such article, and he orders or reorders such article 1 2 3 4 5 6 7 8 9 76 after having received notice by registered or certified mail of the protection subsisting in the design. (b) It shall be not infringement to make, have made, import, sell, or distribute, any article embodying a design created without knowledge of, and copying from, a protected design. (c) A person who incorporates into his own product of manufacture an infringing article acquired from others in the ordinary course of business, or who, without knowledge of the protected design, makes or processes an infringing article for the account of another person in the ordinary course of business, shall not be deemed an infringer except under the conditions of clauses (i) and (ii) of paragraph (a)(2) of this section. Accepting an order or reorder from the source of the in13 fringing article shall be deemed ordering or reordering within the meaning of clause (ii) of paragraph (a) (2) of this section. 10 11 12 14 15 16 17 18 19 20 21 (d) An "infringing article" as used herein is any article, the design of which has been copied from the protected design, without the consent of the proprietor: Provided however, That an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium shall not be deemed to be an infringing article. An article is not an infringing article if it embodies, in common with the protected design, only elements described in subsections (a) through (d) of section 302. (e) The party alleging rights in a design in any action or proceed24 ing shall have the burden of affirmatively establishing its originality whenever the opposing party introduces an earlier work which is identical to such design, or so similar as to make a prima facie show27 ing that such design was copied from such work. SEC. 309. (a) Protection under this title shall be lost if application for registration of the design is not made within six months after the date on which the design was first made public as provided in section 304 (b). (b) Application for registration or renewal may be made by the proprietor of the design. (c) The application for registration shall be made to the Adminis36 trator and shall state (1) the name and address of the author or 37 authors of the design; (2) the name and address of the proprietor if different from the author; (3) the specific name of the article, indicating its utility; (4) the date when the design was first made public as provided in section 304 (b); and (5) such other information as may 38 39 40 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 be required by the Administrator. The application for registration may include a description setting forth the salient features of the design, but the absence of such a description shall not prevent registration under this title. (d) The application for registration shall be accompanied by a statement under oath by the applicant or his duly authorized agent or representative, setting forth that, to the best of his knowledge and belief (1) the design is original and was created by the author or authors named in the application; (2) the design has not previously been registered on behalf of the applicant or his predecessor in title; (3) the design has been made public as provided in section 304 (b); and (4) the applicant is the person entitled to protection and to registration under this title. If the design has been made public with the design notice prescribed in section 306, the statement shall also describe the exact form and position of the design notice. (e) Error in any statement or assertion as to the utiliy of the article named in the application, the design of which is sought to be registered, shall not affect the protection secured under this title. (f) Errors in omitting a joint author or in naming an alleged joint author shall not affect the validity of the registration, or the actual ownership or the protection of the design: Provided, That the name of one individual who was in fact an author is stated in the application. Where the design was made within the regular scope of the author's employment and individual authorship of the design is difficult or impossible to ascribe and the application so states, the name and address of the employer for whom the design was made may be stated instead of that of the individual author. (g) The application for registration shall be accompanied by two copies of a drawing or other pictorial representation of the useful 30 article having one or more views adequate to show the design, in a form and style suitable for reproduction, which shall be deemed a part of the application. 31 32 33 34 35 36 37 38 89 40 (h) Related useful articles having common design features may be included in the same application under such conditions as may be prescribed by the Administrator. BENEFIT OF EARLIER FILING DATE IN FOREIGN COUNTRY SEC. 310. An application for registration of a design filed in this country by any person who has, or whose legal representative or predecessor or successor in title has previously regularly filed an application for registration of the same design in a foreign country which af 78 1 fords similar privileges in the case of applications filed in the United 2 States or to citizens of the United States shall have the same effect 3 as if filed in this country on the date on which the application was 4 first filed in any such foreign country, if the application in this country 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 is filed within six months from the earliest date on which any such foreign application was filed. OATHS AND ACKNOWLEDGMENTS SEC. 311. Oaths and acknowledgments required by this title may be made before any person in the United States authorized by law to administer oaths, or, when made in a foreign country, before any diplomatic or consular officer of the United States authorized to administer oaths, or before any official authorized to administer oaths in the foreign country concerned, whose authority shall be proved by a certificate of a diplomatic or consular officer of the United States, and shall be valid if they comply with the laws of the state or country where made. EXAMINATION OF APPLICATION AND ISSUE OR REFUSAL OF REGISTRATION SEC. 312 (a) Upon the filing of an application for registration in proper form as provided in section 309, and upon payment of the fee provided in section 315, the Administrator shall determine whether or not the application relates to a design which on its face appears to be subject to protection under this title, and if so, he shall register the design. Registration under this subsection shall be announced by publication. (b) If, in his judgment, the application for registration relates to a design which on its face is not subject to protection under this title, the Administrator shall send the applicant a notice of his refusal to register and the grounds therefor. Within three months from the date the notice of refusal is sent, the applicant may request, in writing, reconsideration of his application. After consideration of such a request, the Administrator shall either register the design or send the applicant a notice of his final refusal to register. (c) Any person who believes he is or will be damaged by a registration under this title may, upon payment of the prescribed fee, apply to the Administrator at any time to cancel the registration on the ground that the design is not subject to protection under the provisions of this title, stating the reasons therefor. Upon receipt of an application for cancellation, the Administrator shall send the proprietor of the design, as shown in the records of the Office of the Administrator, a notice of said application, and the proprietor shall have a period of three months from the date such notice was mailed in which to present |