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 SEC. 315. (a) There shall be paid to the Administrator the following fees: (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. (4) For a certificate of correction of an error not the fault of the Office, $10. 16 (5) For certification of copies of records, $1. 17 18 19 20 21 (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. SEC. 316. The Administrator may establish regulations not inconsistent with law for the administration of this title. REGULATIONS 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. 36 37 38 39 40 41 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 within the regular scope of the author's employment, or a person to 8 4 5 6 7 whom the rights of the author or of such employer have been transferred. The person or persons in whom the property right is vested shall be considered the proprietor of the design. (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 registration of the design. 21 22 23 25 (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 26 action if the court adjudges the design subject to protection under this 27 title: Provided, That (1) he has previously duly filed and duly prosecuted to such final refusal an application in proper form for regis29 tration 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. 28 30 31 32 33 34 35 36 37 38 39 40 41 INJUNCTION SEC. 321. 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. 322. (a) Upon finding for the claimant the court shall award 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 21 223 24 25 26 27 28 (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 court. 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 37 38 is not protected under this title, a design notice as specified in section 306 or any other words or symbols importing that the design is pro39 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 18 19 23 26 27 29 30 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 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. ADMINISTRATOR SEC. 330. The Administrator and Office of the Administrator re 32 ferred to in this title shall be such officer and office as the President 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 84 1 by inserting "designs," after "patent rights," and "design registra (b) Title 28 of the United States Code is amended (1) by inserting "designs," after "patents," in the first sentence of section 1338(a); 3 4 5 6 7 8 9 10 11 12 13 (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 register 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 manu14 factured by or for the United States without license of the owner 15 thereof or lawful right to use or manufacture the same, the owner's 16 remedy shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture. 17 18 19 20 21 "For the purposes of this section, the use or manufacture of a registered design or an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States. "The court shall not award compensation under this section if 26 the claim is based on the use or manufacture by or for the United 27 States of any article owned, leased, used by, or in the possession of the United States, prior to, in the case of an invention, July 1, 1918, and in the case of a registered design, July 1, 1976. 28 29 31 32 33 34 30 "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 37 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." 35 36 38 39 40 |