PROTECTION BY REGISTRATION OF DESIGNS FOR TEXTILES THURSDAY, JANUARY 5, 1933 UNITED STATES SENATE, The committee met, pursuant to call, at 10.30 o'clock a. m., in room 312, Senate Office Building, Senator Felix Hebert presiding. Present, Senators Hebert (chairman), Goldsborough, Schuyler, Dill, and Trammell. The committee had under consideration the following bill: A BILL To provide protection by registration of designs for textiles and other materials [S. 5075, Seventy-second Congress, second session] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who is the original author of a design to be applied to textiles, laces, and/or embroidery of any kind, whether such design is to be woven into or applied to the surface of or incorporated into the surface or fiber of the fabric, or any person who is the assignee of any such original author, may procure registration of such design by filing with the Register of Copyrights two specimens, drawings, photographs, or other identifying representations of the design accompanied by a statement under oath of the name and address of the applicant and of the original author, together with such other information as the Register of Copyrights shall require, and a fee of $3. The application must be filed before the design has been published or commercially distributed. The rights of priority provided for industrial designs in the Convention for the Protection of Industrial Property signed at The Hague in 1925 are hereby made applicable to designs registered under the provisions of this act. SEC. 2. The Register of Copyrights shall establish a file containing such registered designs and such other designs which he may see fit to include, all of which shall be open to public inspection. SEC. 3. Upon receipt of such application the Register of Copyrights shall cause a search to be made, and if he finds the design to be original and/or novel, he shall, within seven days or less from the date of application, issue a certificate of registration under seal to the applicant. SEC. 4. When such a certificate of registration has been issued there shall be in any action or suit involving the same a presumption of originality and novelty in the registered design and of validity in the registration thereof; and a presumption of copying may, in the discretion of the court, be held to arise from substantial resemblance to the registered design of defendant's design. On any motion for a preliminary injunction or in any other proceeding or action on production of the certificate of registration or a certified copy thereof the court, in the absence of other proof, shall hold the design covered by the certificate of registration to be original, novel, and properly registered, and if the court finds a substantial resemblance between the registered design and the defendant's design a preliminary injunction shall be forthwith issued. SEC. 5. During five years from the date of the certificate it shall not be lawful for any person (a) for the purpose of sale, to apply or cause to be applied to any fabric, lace, or embroidery of any kind, the registered design or any 1 fraudulent identical or obvious imitation thereof except with the license or written consent of the registrant, or to do anything with a view to enable the design to be so applied; or (b) knowing that the registered design or any fraudulent identical or obvious imitation thereof has been applied to any such article without the consent of the registrant, to publish, sell, or expose for sale or cause to be published, sold, or exposed for sale that article; and the owner of the certificate of registration shall have against any person acting in contravention of this section the same rights to sue and recover as for infringement of copyright; but a distributor at retail to the general public shall be deemed to act in contravention of this section only as to goods purchased after written notice that in a suit a court has granted a restraining order or an injunction or entered an order or given an opinion or a decision, although refusing injunctive relief, stating that the design in question is original and novel, and only if simultaneously with such notice a sample or reproduction, whether photostatic or otherwise, of the alleged original and novel design is mailed or delivered to the distributor at retail; but this exception for the distributor at retail shall apply only if such distributor shall have made, upon request of the owner of the certificate of registration, a prompt and full disclosure as to source and particulars of the purchase of any goods claimed to be an infringement of a registered design, and if such distributor at retail had not induced or acted in collusion with a manufacturer to make, or an importer to import, an article containing an identical or obvious resemblance to the registered design, but purchasing or giving an order for the purchases in the ordinary course of business shall not in itself be construed as constituting such inducement or collusion. In addition to other remedies provided, a person doing anything in contravention of this section shall be liable to pay a sum of not less than $2,500 where the defendant is a manufacturer or importer, and in any other case not less than $400, as compensation to the plaintiff and not as a penalty, in each case, upon plaintiff's request, where the court in its discretion concludes that an accounting should be dispensed with or that upon an accounting, damages or profits, where the defendant is a manufacturer or importer, would not exceed $2,500 or would not exceed $100 in any other case. SEC. 6. Failure of the registrant or his agent to apply the design to fabrics, lace, or embroidery of any kind within one year of the date of the certificate of registration shall terminate any exclusive rights in the design unless copied thereafter by one with whom negotiations for manufacture or purchase had begun during said year. Before delivery on sale by the registrant or his agent of any article to which a registered design has been applied, the registrant or his agent shall cause every such article, or the wrapper or package in which it is contained, to be marked "Registered or R in a circle thus: -as he may choose, but where the design is repeated on an article it shall not be necessary to so mark each occurrence of the design, but a single marking on each ordinary unit of sale shall be sufficient. Failure to so mark shall preclude recovery of damages or profits for an infringement unless actual notice is proven. SEC. 7. Any person who shall (a) register a design knowing that any of the statements contained in the application for registration are false or (b) with fraudulent intent place the notice of registration provided by this act upon an article not bearing the registered design or (c) sell an article bearing the notice of registration knowing that it has not been registered, shall be guilty of a misdemeanor and liable to a fine of not less than $100 and not more than $1,000. SEC. 8. Any person who shall bring an action or suit for infringement of a design alleged to be protected under this act, and known by the plaintiff to be not an original work of authorship of the person alleged in the application to be the original author of said design, shall on due showing of such knowledge 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 the taxable costs and counsel fees of the defendant to be assessed by the court. SEC. 9. The provisions of law with respect to assignments of copyrights and recording thereof shall apply to assignments of certificates of registration under this act, and the Register of Copyrights shall have the same authority to make rules for proceedings under this act as with respect to copyrights. SEC. 10. No patent for any design for textiles. laces, or embroideries of any kind shall issue under sections 4929 and 4931 of the Revised Statutes on an application filed after this act goes into effect. SEC. 11. This act shall take effect July 1, 1933. |