1 2 3 5 6 79 arguments in support of the validity of the registration. It shall also be within the authority of the Administrator to establish, by regulation, conditions under which the opposing parties may appear and be 4 heard in support of their arguments. If, after the periods provided for the presentation of arguments have expired, the Administrator determines that the applicant for cancellation has established that the design is not subject to protection under the provisions of this title, he shall order the registration stricken from the record. Cancellation 9 under this subsection shall be announced by publication, and notice of the Administrator's final determination with respect to any application for cancellation shall be sent to the applicant and to the proprietor of record. 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 28 (d) Remedy against a final adverse determination under subparagraphs (b) and (c) above may be had by means of a civil action against the Administrator pursuant to the provision of section 1361 of title 28, United States Code, if commenced within such time after such decision, not less than 60 days, as the Administrator appoints. (e) When a design has been registered under this section, the lack of utility of any article in which it has been embodied shall be no defense to an infringement action under section 320, and no ground for cancellation under subsection (c) of this section or under section 323. CERTIFICATE OF REGISTRATION SEC. 313. Certificates of registration shall be issued in the name of 24 the United States under the seal of the Office of the Administrator and 25 shall be recorded in the official records of that Office. The certificate 26 shall state the name of the useful article, the date of filing of the appli27 cation, the date on which the design was first made public as provided in section 304 (b) or any carlier date as set forth in section 305 (b), and shall contain a reproduction of the drawing or other pictorial repre30 sentation showing the design. Where a description of the salient features of the design appears in the application, this description shall 32 also appear in the certificate. A renewal certificate shall contain the 33 date of renewal registration in addition to the foregoing. A certificate 34 of initial or renewal registration shall be admitted in any court as 35 prima facie evidence of the facts stated therein. 29 31 36 PUBLICATION OF ANNOUNCEMENTS AND INDEXES 37 SEC. 314. (a) The Administrator shall publish lists and indexes of 38 registered designs and cancellations thereof and may also publish the 39 drawing or other pictorial representations of registered designs for sale or other distribution. 40 1 2 3 4 5 80 (b) The Administrator shall establish and maintain a file of the drawings or other pictorial representations of registered designs, which file shall be available for use by the public under such conditions as the Administrator may prescribe. FEES 6 SEC. 315. (a) There shall be paid to the Administrator the following (1) On filing each application for registration or for renewal of registration of a design, $15. (2) For each additional related article included in one application, $10. (3) For recording assignment, $3 for the first six pages, and for each additional two pages or less, $1. 8 9 10 11 12 13 14 15 16 (5) For certification of copies of records, $1. 17 18 19 20 21 (4) For a certificate of correction of an error not the fault of the Office, $10. 23 24 25 222 22 2 2 2 2 2 2 2 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (6) On filing each application for cancellation of a registration, $15. (b) The Administrator may establish charges for materials or services furnished by the Office, not specified above, reasonably related to the cost thereof. REGULATIONS SEC. 316. The Administrator may establish regulations not inconsistent with law for the administration of this title. COPIES OF RECORDS SEC. 317. Upon payment of the prescribed fee, any person may obtain a certified copy of any official record of the Office of the Administrator, which copy shall be admissible in evidence with the same effect as the original. CORRECTION OF ERRORS IN CERTIFICATES SEC. 318. The Administrator may correct any error in a registration incurred through the fault of the Office, or, upon payment of the required fee, any error of a clerical or typographical nature not the fault of the Office occurring in good faith, by a certificate of correction under seal. Such registration, together with the certificate, shall thereafter have the same effect as if the same had been originally issued in such corrected form. OWNERSHIP AND TRANSFER SEC. 319. (a) The property right in a design subject to protection under this title shall vest in the author, the legal representatives of a deceased author or of one under legal incapacity, the employer for 81 1 whom the author created the design in the case of a design made 2 3 within the regular scope of the author's employment, or a person to whom the rights of the author or of such employer have been trans4 ferred. The person or persons in whom the property right is vested shall be considered the proprietor of the design. 5 6 7 (b) The property right in a registered design, or a design for which an application for registration has been or may be filed, may be as8 signed, granted, conveyed, or mortgaged by an instrument in writing, 9 signed by the proprietor, or may be bequeathed by will. 10 11 12 13 14 15 16 17 18 19 (c) An acknowledgment as provided in section 311 shall be prima facie evidence of the execution of an assignment, grant, conveyance, or mortgage. (d) An assignment, grant, conveyance, or mortgage shall be void as against any subsequent purchaser or mortgage for a valuable consideration, without notice, unless it is recorded in the Office of the Administrator within three months from its date of execution or prior to the date of such subsequent purchase or mortgage. REMEDY FOR INFRINGEMENT SEC. 320. (a) The proprietor of a design shall have remedy for in20 fringement by civil action instituted after issuance of a certificate of 21 registration of the design. 22 23 25 26 27 (b) The proprietor of a design may have judicial review of a final refusal of the Administrator to register the design, by a civil action 24 brought as for infringement if commenced within the time specified in section 312(d), and shall have remedy for infringement by the same action if the court adjudges the design subject to protection under this title: Provided, That (1) he has previously duly filed and duly prosecuted 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. SEC. 321. The several courts having jurisdiction of actions under this title may grant injunctions in accordance with the principles of 37 equity to prevent infringement, including in their discretion, prompt relief by temporary restraining orders and preliminary injunctions. 38 39 40 RECOVERY FOR INFRINGEMENT, AND SO FORTH SEC. 322. (a) Upon finding for the claimant the court shall award 41 him damages adequate to compensate for the infringement, but in 82 1 2 3 4 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 5 above circumstances shall constitute compensation and not a penalty. The court may receive expert testimony as an aid to the determination of damages. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (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 320 (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. 323. 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. 324. Any person who shall bring an action for infringement knowing that registration of the design was obtained by a false or 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 30 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 34 SEC. 325. (a) Whoever, for the purpose of deceiving the public, marks upon, or applies to, or uses in advertising in connection with any 36 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 38 306 or any other words or symbols importing that the design is pro 37 39 tected under this title, knowing that the design is not so protected, shall be fined not more than $500 for every such offense. 40 41 (b) Any person may sue for the penalty, in which event, one-half 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 shall go to the person suing and the other to the use of the United States. PENALTY FOR FALSE REPRESENTATION SEC. 326. Whoever knowingly makes a false representation materially 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 privileges he may have in the design under this title shall be forfeited. RELATION TO COPYRIGHT LAW SEC. 327. (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 copyright subsists under title I of this Act is utilized in an original ornamental design of a useful article, by the copyright proprietor or under an express license from him, the design shall be eligible for protection under the provisions of this title. RELATION TO PATENT LAW SEC. 328. (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 Code. (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 SEC. 329. 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 27 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. SEC. 330. The Administrator and Office of the Administrator referred to in this title shall be such officer and office as the President may designate. SEC. 331. 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 40 41 SEC. 332. (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 |