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years.

THE DESIGN NOTICE

1 from the date of the commencement of protection as provided in sec-
2 tion 304(a), but if a proper application for renewal is received by the
3 Administrator during the year prior to the expiration of the e-year
4 term, the protection herein provided shall be extended for an addi-
5 tional period of five years from the date of expiration of the first five
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7 (b) If the design notice actually applied shows a date earlier than
8 the date of the commencement of protection as provided in section
9 304(a), protection shall terminate as though the term had commenced
10 at the earlier date.
11 (c) Where the distinguishing elements of a design are in sub-
12 stantially the same form in a number of different useful articles, the
13 design shall be protected as to all such articles when protected as to
14 one of them, but not more than one registration shall be required. Upon
15 expiration or termination of protection in a particular design as pro-
16 vided in this title all rights under this title in said design shall ter-
17 minate, regardless of the number of different articles in which the
18 design may have been utilized during the term of its protection.
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20 Sec. 306. (a) Whenever any design for which protection is sought
21 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
23 have it marked legibly with a design notice consisting of the following
24 three elements:
25 (1) the words "Protected Design", the abbreviation "Prot'd
26 Des." or the letter "D" within a circle, thus ;

(2) the year of the date on which the design was first made
28 public; and
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(3) the name of the proprietor, an abbreviation by which the 30 name can be recognized, or a generally accepted alternative desig31 nation of the proprietor; any distinctive identification of the pro32 prietor may be used if it has been approved and recorded by 38 the Administrator before the design marked with such identifica34 tion is made public. 35 After registration the registration number may be used instead of 36 the elements specified in (2) and (3) hereof. 37 (b) The notice shall be so located and applied as to give reasonable 38 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

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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 8

on an article. 9

EFFECT OF OMISSION OF NOTICE

10 Sec. 307. The omission of the notice prescribed in section 306 shall 11 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 15 who began an undertaking leading to infringement before receiving 16 written notice of the design protection, and no injunction shall be 17 had unless the proprietor of the design shall reimburse said person 18 for any reasonable expenditure or contractual obligation in connec19 tion with such undertaking incurred before written notice of design 20 protection, as the court in its discretion shall direct. The burden 21 of proving written notice shall be on the proprietor. 22

INFRINGEMENT 23 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 25 the design, within the United States or its territories or possessions 26 and during the term of such protection, to27

(1) make, have made, or import, sale or for use in trade, 28 any infringing article as defined in subsection (d) hereof; or 29

(2) sell or distribute for sale or for use in trade any such 30 infringing article: Provided, however, That a seller or distributor 31 of any such article who did not make or import the same shall be 32 deemed to be an infringer only if33

(i) he induced or acted in collusion with a manufacturer to 34

make, or an importer to import such article (merely purchas35

ing or giving an order to purchase in the ordinary course of 36

business shall not of itself constitute such inducement or 37

collusion); or 38

(ii) he refuses or fails upon the request of the proprietor 39

of the design to make a prompt and full disclosure of his 40

source of such article, and he orders or reorders such article

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after having received notice by registered or certified mail 2

of the protection subsisting in the design. 3 (b) It shall be not infringement to make, have made, import, sell, 4 or distribute, any article embodying a design created without knowl5 edge of, and copying from, a protected design. 6 (c) A person who incorporates into his own product of manufacture 7 an infringing article acquired from others in the ordinary course of 8 business, or who, without knowledge of the protected design, makes or 9 processes an infringing article for the account of another person in the 10 ordinary course of business, shall not be deemed an infringer except 11 under the conditions of clauses (i) and (ii) of paragraph (a) (2) of 12 this section. Accepting an order or reorder from the source of the in13 fringing article shall be deemed ordering or reordering within the 14 meaning of clause (ii) of paragraph (a) (2) of this section. 15 (d) An "infringing article” as used herein is any article, the design 16 of which has been copied from the protected design, without the con17 sent of the proprietor: Provided however, That an illustration or 18 picture of a protected design in an advertisement, book, periodical, 19 newspaper, photograph, broadcast, motion picture, or similar medium 20 shall not be deemed to be an infringing article. An article is not an 21 infringing article if it embodies, in common with the protected design, 22 only elements described in subsections (a) through (d) of section 302. 23 (e) The party alleging rights in a design in any action or proceed24 ing shall have the burden of affirmatively establishing its originality 25 whenever the opposing party introduces an earlier work which is 26 identical to such design, or so similar as to make a prima facie show27 ing that such design was ied from such work. 28 29 Sec. 309. (a) Protection under this title shall be lost if application 30

for registration of the design is not made within six months after the 31 date on which the design was first made public as provided in section 32 304 (b). 33 (b) Application for registration or renewal may be made by the 34 proprietor of the design. 35 (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 38 if different from the author; (3) the specific name of the article, in39 dicating its utility; (4) the date when the design was first made public 40 as provided in section 304(b); and (5) such other information as may

APPLICATION FOR REGISTRATION

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1 be required by the Administrator. The application for registration 2 may include a description setting forth the salient features of the de3 sign, but the absence of such a description shall not prevent registra4 tion under this title. 5 (d) The application for registration shall be accompanied by a 6 statement under oath by the applicant or his duly authorized agent or 7 representative, setting forth that, to the best of his knowledge and be8 lief (1) the design is original and was created by the author or authors 9 named in the application; (2) the design has not previously been regis10 tered on behalf of the applicant or his predecessor in title; (3) the de11 sign has been made public as provided in section 304(b); and (4) the 12 applicant is the person entitled to protection and to registration under 13 this title. If the design has been made public with the design notice 14 prescribed in section 306, the statement shall also describe the exact 15 form and position of the design notice. 16 (e) Error in any statement or assertion as to the utiliy of the article 17 named in the application, the design of which is sought to be regis18 tered, shall not affect the protection secured under this title. 19 (f) Errors in omitting a joint author or in naming an alleged joint 20 author shall not affect the validity of the registration, or the actual 21 ownership or the protection of the design: Provided, That the name of 22 one individual who was in fact an author is stated in the application. 28 Where the design was made within the regular scope of the author's 24 employment and individual authorship of the design is difficult or im25 possible to ascribe and the application so states, the name and address 26 of the employer for whom the design was made may be stated instead 27 of that of the individual author. 28 (g) The application for registration shall be accompanied by two 29 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 81 form and style suitable for reproduction, which shall be deemed a 32 part of the application. 33 (h) Related useful articles having common design features may be 34 included in the same application under such conditions as may be pre35 scribed by the Administrator. 36 37 Sec. 310. An application for registration of a design filed in this 38 country by any person who has, or whose legal representative or pred89 ecessor or successor in title has previously regularly filed an applica40 tion for registration of the same design in a foreign country which af

BENEFIT OF EARLIER FILING DATE IN FOREIGN COUNTRY

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fords similar privileges in the case of applications filed in the United States or to citizens of the United States shall have the same effect as if filed in this country on the date on which the application was first filed in any such foreign country, if the application in this country is filed within six months from the earliest date on which any such foreign application was filed.

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OATHS AND ACKNOWLEDGMENTS

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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.

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EXAMINATION OF APPLICATION AND ISSUE OR REFUSAL OF REGISTRATION

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Sec. 312 (a) Upon the filing of an application for registration in 19

proper form as provided in section 309, and upon payment of the fee 20

provided in section 315, the Administrator shall determine whether 21

or not the application relates to a design which on its face appears to 22

be subject to protection under this title, and if so, he shall register the 23

design. Registration under this subsection shall be announced by 24 publication. 25

(b) If, in his judgment, the application for registration relates to 26

a design which on its face is not subject to protection under this title, 27

the Administrator shall send the applicant a notice of his refusal to 28

register and the grounds therefor. Within three months from the date 29

the notice of refusal is sent, the applicant may request, in writing, re30

consideration of his application. After consideration of such a request, 31

the Administrator shall either register the design or send the applicant 32

a notice of his final refusal to register. 33

(c) Any person who believes he is or will be damaged by a registra34 tion under this title may, upon payment of the prescribed fee, apply 35

to the Administrator at any time to cancel the registration on the 36

ground that the design is not subject to protection under the provisions 37

of this title, stating the reasons therefor. Upon receipt of an applica38

tion for cancellation, the Administrator shall send the proprietor of 39

the design, as shown in the records of the Office of the Administrator, a 40 notice of said application, and the proprietor shall have a period of 41 three months from the date such notice was mailed in which to present

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