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Union Calendar No. 238
106th CONGRESS
1st Session
H. R. 3028
[Report No. 106-412]
_______________________________________________________________________
A BILL
To amend certain trademark laws to prevent the misappropriation of
marks.
_______________________________________________________________________
October 25, 1999
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
Union Calendar No. 238
106th CONGRESS
1st Session
H. R. 3028
[Report No. 106-412]
To amend certain trademark laws to prevent the misappropriation of
marks.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 6, 1999
Mr. Rogan (for himself, Mr. Boucher, Mr. Coble, and Mr. Goodlatte)
introduced the following bill; which was referred to the Committee on
the Judiciary
October 25, 1999
Additional sponsor: Mr. Salmon
October 25, 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 October
6, 1999]
_______________________________________________________________________
A BILL
To amend certain trademark laws to prevent the misappropriation of
marks.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Trademark
Cyberpiracy Prevention Act''.
(b) References to the Trademark Act of 1946.--Any reference in this
Act to the Trademark Act of 1946 shall be a reference to 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'', approved July 5,
1946 (15 U.S.C. 1051 et seq.).
SEC. 2. CYBERPIRACY PREVENTION.
(a) In General.--Section 43 of the Trademark Act of 1946 (15 U.S.C.
1125) is amended by inserting at the end the following:
``(d)(1)(A) A person shall be liable in a civil action by the owner
of a trademark or service mark if, without regard to the goods or
services of the parties, that person--
``(i) has a bad faith intent to profit from that trademark
or service mark; and
``(ii) registers, traffics in, or uses a domain name that--
``(I) in the case of a trademark or service mark
that is distinctive at the time of registration of the
domain name, is identical or confusingly similar to
such mark;
``(II) in the case of a famous trademark or service
mark that is famous at the time of registration of the
domain name, is dilutive of such mark; or
``(III) is a trademark, word, or name protected by
reason of section 706 of title 18, United States Code,
or section 220506 of title 36, United States Code.
``(B) In determining whether there is a bad-faith intent described
under subparagraph (A), a court may consider factors such as, but not
limited to--
``(i) the trademark or other intellectual property rights
of the person, if any, in the domain name;
``(ii) the extent to which the domain name consists of the
legal name of the person or a name that is otherwise commonly
used to identify that person;
``(iii) the person's prior lawful use, if any, of the
domain name in connection with the bona fide offering of any
goods or services;
``(iv) the person's lawful noncommercial or fair use of the
mark in a site accessible under the domain name;
``(v) the person's intent to divert consumers from the mark
owner's online location to a site accessible under the domain
name that could harm the goodwill represented by the mark,
either for commercial gain or with the intent to tarnish or
disparage the mark, by creating a likelihood of confusion as to
the source, sponsorship, affiliation, or endorsement of the site;
``(vi) the person's offer to transfer, sell, or otherwise
assign the domain name to the mark owner or any third party for
financial gain without having used, or having an intent to use,
the domain name in the bona fide offering of any goods or
services;
``(vii) the person's provision of material and misleading
false contact information when applying for the registration of
the domain name or the person's intentional failure to maintain
accurate contact information;
``(viii) the person's registration or acquisition of
multiple domain names which the person knows are identical or
confusingly similar to trademarks or service marks of others
that are distinctive at the time of registration of such domain
names, or dilutive of famous trademarks or service marks of
others that are famous at the time of registration of such
domain names, without regard to the goods or services of such
persons;
``(ix) the person's history of offering to transfer, sell,
or otherwise assign domain names incorporating marks of others
to the mark owners or any third party for consideration without
having used, or having an intent to use, the domain names in
the bona fide offering of any goods and services;
``(x) the person's history of providing material and
misleading false contact information when applying for the
registration of other domain names which incorporate marks, or
the person's history of using aliases in the registration of
domain names which incorporate marks of others; and
``(xi) the extent to which the trademark or service mark
incorporated in the person's domain name registration is
distinctive and famous within the meaning of subsection (c)(1)
of section 43 of the Trademark Act of 1946 (15 U.S.C. 1125).
``(C) In any civil action involving the registration, trafficking,
or use of a domain name under this paragraph, a court may order the
forfeiture or cancellation of the domain name or the transfer of the
domain name to the owner of the mark.
``(D) A person shall be liable for using a domain name under
subparagraph (A)(ii) only if that person is the domain name registrant
or that registrant's authorized licensee.
``(E) As used in this paragraph, the term `traffics in' refers to
transactions that include, but are not limited to, sales, purchases,
loans, pledges, licenses, exchanges of currency, and any other transfer
for consideration or receipt in exchange for consideration.
``(2)(A) The owner of a mark may file an in rem civil action
against a domain name in the judicial district in which suit may be
brought against the domain name registrar, domain name registry, or
other domain name authority that registered or assigned the domain name
if--
``(i) the domain name violates any right of the registrant
of a mark registered in the Patent and Trademark Office, or
subsection (a) or (c) of this section, or is a trademark, word,
or name protected by reason of section 706 of title 18, United
States Code, or section 220506 of title 36, United States Code;
and
``(ii) the court finds that--
``(I) the owner has demonstrated due diligence and
was not able to find or was not able to serve a person
who would have been a defendant in a civil action under
paragraph (1); or
``(II) personal jurisdiction cannot be established
over any person who would have been a defendant in a
civil action under paragraph (1).
``(B) The remedies in an in rem action under this paragraph shall
be limited to a court order for the forfeiture or cancellation of the
domain name or the transfer of the domain name to the owner of the
mark.
``(C) The in rem action established under this paragraph and any
remedy available under such action shall be in addition to any other
civil action or remedy otherwise applicable.
``(3) The civil action established under paragraph (1) and any
remedy available under such action shall be in addition to any other
civil action or remedy otherwise applicable.''.
SEC. 3. DAMAGES AND REMEDIES.
(a) Remedies in Cases of Domain Name Piracy.--
(1) Injunctions.--Section 34(a) of the Trademark Act of
1946 (15 U.S.C. 1116(a)) is amended in the first sentence by
striking ``(a) or (c)'' and inserting ``(a), (c), or (d)''.
(2) Damages.--Section 35(a) of the Trademark Act of 1946
(15 U.S.C. 1117(a)) is amended in the first sentence by
inserting ``, (c), or (d)'' after ``section 43(a)''.
(b) Statutory Damages.--Section 35 of the Trademark Act of 1946 (15
U.S.C. 1117) is amended by adding at the end the following:
``(d) In a case involving a violation of section 43(d)(1), the
plaintiff may elect, at any time before final judgment is rendered by
the trial court, to recover, instead of actual damages and profits, an
award of statutory damages in the amount of not less than $1,000 and
not more than $100,000 per domain name, as the court considers just.
The court may remit statutory damages in any case in which the court
finds that an infringer believed and had reasonable grounds to believe
that use of the domain name by the infringer was a fair or otherwise
lawful use.''.
SEC. 4. LIMITATION ON LIABILITY.
Section 32(2) of the Trademark Act of 1946 (15 U.S.C. 1114) is
amended--
(1) in the matter preceding subparagraph (A) by striking
``under section 43(a)'' and inserting ``under section 43(a) or
(d)''; and
(2) by redesignating subparagraph (D) as subparagraph (E)
and inserting after subparagraph (C) the following:
``(D)(i) A domain name registrar, a domain name registry,
or other domain name registration authority that takes any
action described under clause (ii) affecting a domain name
shall not be liable for monetary relief to any person for such
action, regardless of whether the domain name is finally
determined to infringe or dilute the mark.
``(ii) An action referred to under clause (i) is any action
of refusing to register, removing from registration,
transferring, temporarily disabling, or permanently canceling a
domain name--
``(I) in compliance with a court order under
section 43(d); or
``(II) in the implementation of a reasonable policy
by such registrar, registry, or authority prohibiting
the registration of a domain name that is identical to,
confusingly similar to, or dilutive of another's mark
registered on the Principal Register of the United
States Patent and Trademark Office, or of a trademark,
word, or name protected by reason of section 706 of
title 18, United States Code, or section 220506 of
title 36, United States Code.
``(iii) A domain name registrar, a domain name registry, or
other domain name registration authority shall not be liable
for damages under this section for the registration or
maintenance of a domain name for another absent a showing of
bad faith intent to profit from such registration or
maintenance of the domain name.
``(iv) If a registrar, registry, or other registration
authority takes an action described under clause (ii) based on
a knowing and material misrepresentation by any other person
that a domain name is identical to, confusingly similar to, or
dilutive of a mark registered on the Principal Register of the
United States Patent and Trademark Office, or a trademark,
word, or name protected by reason of section 706 of title 18,
United States Code, or section 220506 of title 36, United
States Code, the person making the knowing and material
misrepresentation shall be liable for any damages, including
costs and attorney's fees, incurred by the domain name
registrant as a result of such action. The court may also grant
injunctive relief to the domain name registrant, including the
reactivation of the domain name or the transfer of the domain
name to the domain name registrant.
``(v) A domain name registrant whose domain name has been
suspended, disabled, or transferred under a policy described
under clause (ii)(II) may, upon notice to the mark owner, file
a civil action to establish that the registration or use of the
domain name by such registrant is not unlawful under this Act.
The court may grant injunctive relief to the domain name
registrant, including the reactivation of the domain name or
transfer of the domain name to the domain name registrant.''.
SEC. 5. DEFINITIONS.
Section 45 of the Trademark Act of 1946 (15 U.S.C. 1127) is amended
by inserting after the undesignated paragraph defining the term
``counterfeit'' the following:
``The term `domain name' means any alphanumeric designation which
is registered with or assigned by any domain name registrar, domain
name registry, or other domain name registration authority as part of
an electronic address on the Internet.
``The term `Internet' has the meaning given that term in section
230(f)(1) of the Communications Act of 1934 (47 U.S.C. 230(f)(1)).''.
SEC. 6. SAVINGS CLAUSE.
Nothing in this Act shall affect any defense available to a
defendant under the Trademark Act of 1946 (including any defense under
section 43(c)(4) of such Act or relating to fair use) or a person's
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