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Union Calendar No. 144
106th CONGRESS
1st Session
H. R. 1565
[Report No. 106-250]
To amend the Trademark Act of 1946 relating to dilution of famous
marks, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 27, 1999
Mr. Coble introduced the following bill; which was referred to the
Committee on the Judiciary
July 22, 1999
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on April
27, 1999]
_______________________________________________________________________
A BILL
To amend the Trademark Act of 1946 relating to dilution of famous
marks, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Trademark Amendments Act of 1999''.
SEC. 2. DILUTION AS A GROUNDS FOR OPPOSITION AND CANCELATION.
(a) Registrable Marks.--Section 2 of the Act entitled ``An Act to
provide for the registration and protection of trade-marks used in
commerce, to carry out the provisions of certain international
conventions, and for other purposes'' (in this Act referred to as the
``Trademark Act of 1946'') (15 U.S.C. 1052) is amended by adding at the
end the following flush sentences: ``A mark which when used would cause
dilution under section 43(c) may be refused registration only pursuant
to a proceeding brought under section 13. A registration for a mark
which when used would cause dilution under section 43(c) may be
canceled pursuant to a proceeding brought under either section 14 or
section 24.''.
(b) Opposition.--Section 13(a) of the Trademark Act of 1946 (15
U.S.C. 1063(a)) is amended in the first sentence by inserting ``,
including as a result of dilution under section 43(c),'' after
``principal register''.
(c) Petitions To Cancel Registrations.--Section 14 of the Trademark
Act of 1946 (15 U.S.C. 1064) is amended in the matter preceding
paragraph (1) by inserting ``, including as a result of dilution under
section 43(c),'' after ``damaged''.
(d) Cancelation.--Section 24 of the Trademark Act of 1946 (15
U.S.C. 1092) is amended in the second sentence by inserting ``,
including as a result of dilution under section 43(c),'' after
``register''.
SEC. 3. REMEDIES IN CASES OF DILUTION OF FAMOUS MARKS.
(a) Injunctions.--(1) Section 34(a) of the Trademark Act of 1946
(15 U.S.C. 1116(a)) is amended in the first sentence by striking
``section 43(a)'' and inserting ``subsection (a) or (c) of section
43''.
(2) Section 43(c)(2) of the Trademark Act of 1946 (15 U.S.C.
1125(c)(2)) is amended in the first sentence by inserting ``as set
forth in section 34'' after ``relief''.
(b) Damages.--Section 35(a) of the Trademark Act of 1946 (15 U.S.C.
1117(a)) is amended in the first sentence by striking ``or a violation
under section 43(a),'' and inserting ``a violation under section 43(a),
or a willful violation under section 43(c),''.
(c) Destruction of Articles.--Section 36 of the Trademark Act of
1946 (15 U.S.C. 1118) is amended in the first sentence--
(1) by striking ``or a violation under section 43(a),'' and
inserting ``a violation under section 43(a), or a willful
violation under section 43(c),''; and
(2) by inserting after ``in the case of a violation of
section 43(a)'' the following: ``or a willful violation under
section 43(c)''.
SEC. 4. LIABILITY OF GOVERNMENTS FOR TRADEMARK INFRINGEMENT AND
DILUTION.
(a) Civil Actions.--Section 32 of the Trademark Act of 1946 (15
U.S.C. 1114) is amended--
(1) by amending the last undesignated paragraph in
paragraph (1) to read as follows:
``As used in this subsection, the term `any person' also includes
the United States, all agencies and instrumentalities thereof, and all
individuals, firms, corporations, or other persons acting for the
United States and with the authorization and consent of the United
States, and any State, any instrumentality of a State, and any officer
or employee of a State or instrumentality of a State acting in his or
her official capacity. The United States, all agencies and
instrumentalities thereof, and all individuals, firms, corporations,
other persons acting for the United States and with the authorization
and consent of the United States, and any State, any instrumentality of
a State, and any officer or employee of a State or instrumentality of a
State, shall be subject to the provisions of this Act in the same
manner and to the same extent as any nongovernmental entity.''.
(b) Waiver of Sovereign Immunity.--Section 40 of the Trademark Act
of 1946 (15 U.S.C. 1122) is amended--
(1) in subsection (b), by striking ``(b) In a suit'' and
inserting ``(c) Availibility of Remedies.--In a suit'';
(2) by striking ``Sec. 40. (a) Any State'' and inserting
the following:
``Sec. 40. (a) Waiver of Sovereign Immunity by the United States.--
The United States, all agencies and instrumentalities thereof, and all
individuals, firms, corporations, other persons acting for the United
States and with the authorization and consent of the United States,
shall not be immune from suit in Federal or State court by any person,
including any governmental or nongovernmental entity, for any violation
under this Act.
``(b) Waiver of Sovereign Immunity by States.--Any State''; and
(3) in the first sentence of subsection (c), as so
redesignated--
(A) by striking ``subsection (a) for a violation
described in that subsection'' and inserting
``subsection (a) or (b) for a violation described
therein''; and
(B) by inserting after ``other than'' the
following: ``the United States or any agency or
instrumentality thereof, or any individual, firm,
corporation, or other person acting for the United
States and with authorization and consent of the United
States, or''.
(c) Definition.--Section 45 of the Trademark Act of 1946 (15 U.S.C.
1127) is amended by inserting between the 2 paragraphs relating to the
definition of ``person'' the following:
``The term `person' also includes the United States, any agency or
instrumentality thereof, or any individual, firm, or corporation acting
for the United States and with the authorization and consent of the
United States. The United States, any agency or instrumentality
thereof, and any individual, firm, or corporation acting for the United
States and with the authorization and consent of the United States,
shall be subject to the provisions of this Act in the same manner and
to the same extent as any nongovernmental entity.''.
SEC. 5. CIVIL ACTIONS FOR TRADE DRESS INFRINGEMENT.
Section 43(a) of the Trademark Act of 1946 (15 U.S.C. 1125(a)) is
amended by adding at the end the following:
``(3) In a civil action for trade dress infringement under this Act
for trade dress not registered on the principal register, the person
who asserts trade dress protection has the burden of proving that the
matter sought to be protected is not functional.''.
SEC. 6. TECHNICAL AMENDMENTS.
(a) Assignment of Marks.--Section 10 of the Trademark Act of 1946
(15 U.S.C. 1060) is amended--
(1) by striking ``subsequent purchaser'' in the second to
last sentence and inserting ``assignment'';
(2) in the first sentence by striking ``mark,'' and
inserting ``mark''; and
(3) in the third sentence by striking the second period at
the end.
(b) Additional Clerical Amendments.--The text and title of the
Trademark Act of 1946 are amended by striking ``trade-marks'' each
place it appears and inserting ``trademarks''.
SEC. 7. RIGHTS OF PERFORMERS OF MUSICAL GROUPS.
(a) In General.--Part A of subtitle II title 36, United States
Code, is amended by inserting after chapter 2401 the following new
chapter:
``CHAPTER 2501--ASSOCIATION TO PRESERVE AUTHENTICITY OF MUSICAL GROUPS
``Sec.
``250101. Association established.
``250102. Objects and purposes.
``250103. Powers.
``250104. Standards for use of certification mark.
``250105. Rights of performers.
``Sec. 250101. Association established
``There shall be established a body corporate which shall be known
as the `Association to Preserve the Authenticity of Musical Groups'.
The Association shall have perpetual succession and the powers and
limitations contained in this chapter. The Association shall appoint
its chairperson.
``Sec. 250102. Objects and purposes
``The objects and purposes of the Association shall be--
``(1) to benefit entertainers and performers who have
performed with original entertainment groups;
``(2) to promote, develop, and assist in preserving and
protecting the rights of entertainers and performers; and
``(3) to educate the public concerning the history of
performing groups and the names of the actual performers in
those groups.
To aid in its purposes, the Association shall promote and use the
certification mark it establishes under this chapter and allow
performers to use the certification mark of the Association in
accordance with the chapter.
``Sec. 250103. Powers
``(a) In General.--The Association may--
``(1) sue and be sued, collect dues, claim and defend in
any court its rights and its members rights in its
certification mark;
``(2) make and adopt a constitution, bylaws, rules, and
regulations for the use of its certification mark;
``(3) from time to time repeal or amend its constitution,
bylaws, rules, and regulations not inconsistent with the laws
of the United States or any of the States thereof; and
``(4) provide for the safe-keeping and management of its
property and funds.
``(b) Certification Mark.--The Association shall establish and have
the sole and exclusive rights to its certification mark for use in
carrying out its purposes. No powers or privileges granted by this
chapter shall interfere or conflict with established or vested rights.
``Sec. 250104. Standards for use of certification mark
``The Association shall establish the standards for those
entertainers who may use its certification mark. Such standards shall
include, but are not limited to, the following criteria:
``(1) At least one performer in any group displaying or
using in its advertising the certification mark must have been
a member of the original group that performed under the same or
similar name.
``(2) Any advertising for such group shall not be false or
misleading with respect to the membership or history of the
group.
Any additional standards must be consistent with paragraphs (1) and
(2).
``Sec. 250105. Rights of Performers
``It shall not be a violation of the Trademark Act of 1946 or the
statutes or common law of any State for an individual who has been a
member of a performing group to be able to use the certification mark
of the Association and represent that such individual had been a member
of such a group in any promotions, advertisements, or performing of the
same services as those performed by such group, if such representation
meets the standards in section 250104 and does not deceive or confuse
as to the nature, characteristics, qualities, or sponsorship of such
services.''.
(b) Conforming Amendment.--The item relating to chapter 2501 in the
table of chapters for subtitle II of title 36, United States Code, is
amended to read as follows:
``2501. ASSOCIATION TO PROVIDE AUTHENTICITY OF MUSICAL 250101''.
GROUPS.
Union Calendar No. 144
106th CONGRESS
1st Session
H. R. 1565
[Report No. 106-250]
_______________________________________________________________________
A BILL
To amend the Trademark Act of 1946 relating to dilution of famous
marks, and for other purposes.
_______________________________________________________________________
July 22, 1999
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
Pages: 1 Other Popular 106th Congressional Bills Documents:
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