S.3728 - Innovative Design Protection and Piracy Prevention Act 111th Congress (2009-2010)
Bill
Hide OverviewSponsor: | Sen. Schumer, Charles E. [D-NY] (Introduced 08/05/2010) |
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Committees: | Senate - Judiciary |
Latest Action: | Senate - 12/06/2010 Placed on Senate Legislative Calendar under General Orders. Calendar No. 674. (All Actions) |
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Subject — Policy Area:
- Commerce
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Text: S.3728 — 111th Congress (2009-2010) All Information (Except Text)
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Reported to Senate (12/06/2010)
Calendar No. 674
111th CONGRESS 2d Session |
To amend title 17, United States Code, to extend protection to fashion design, and for other purposes.
Mr. Schumer (for himself, Mr. Hatch, Mr. Graham, Mr. Whitehouse, Mrs. Gillibrand, Ms. Snowe, Mrs. Boxer, Mrs. Feinstein, Mr. Cardin, Mr. Kohl, and Mrs. Hutchison) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
Reported by Mr. Leahy, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
To amend title 17, United States Code, to extend protection to fashion design, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Innovative Design Protection and Piracy Prevention Act”.
SEC. 2. Amendments to title 17, United States Code.
(a) Designs
protected.—Section 1301 of
title 17, United States Code, is amended— (1) in subsection (a),
by adding at the end the following: “(4) FASHION
DESIGN.—A fashion design is
subject to protection under this
chapter.”;
(2) in subsection
(b)— (A) in paragraph (2),
by inserting “, or an article of apparel,” after “plug or
mold”; and
(B) by adding at the
end the following: “(7) A ‘fashion
design’— “(A) is the appearance
as a whole of an article of apparel, including its ornamentation; and “(B) includes original
elements of the article of apparel or the original arrangement or placement of
original or non-original elements as incorporated in the overall appearance of
the article of apparel that— “(i) are the result of
a designer’s own creative endeavor; and “(ii) provide a unique,
distinguishable, non-trivial and non-utilitarian variation over prior designs
for similar types of articles.
“(8) The term ‘design’ includes fashion design, except to the extent expressly limited to the design of a vessel.
“(9) The term
‘apparel’ means— “(A) an article of
men’s, women’s, or children’s clothing, including undergarments, outerwear,
gloves, footwear, and headgear;
“(B) handbags, purses, wallets, duffel bags, suitcases, tote bags, and belts; and
“(C) eyeglass frames.
“(10) In the case of a fashion design, the term ‘substantially identical’ means an article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.”; and
(3) by adding at the
end the following: “(c) Rule of
construction.—In the case of a fashion design under this chapter,
those differences or variations which are considered non-trivial for the
purposes of establishing that a design is subject to protection under
subsection (b)(7) shall be considered non-trivial for the purposes of
establishing that a defendant’s design is not substantially identical under
subsection (b)(10) and section
1309(e).”.
(b) Designs not
subject to protection.—Section 1302(5) of title 17, United States
Code, is amended— (1) by striking
“(5)” and inserting “(5)(A) in the case of a design of a
vessel hull,”;
(2) by striking the period and inserting “; or”; and
(3) by adding at the
end the following: “(B) in the case of a fashion design, embodied
in a useful article that was made public by the designer or owner in the United
States or a foreign country before the date of enactment of this chapter or
more than 3 years before the date upon which protection of the design is
asserted under this
chapter.”.
(c) Revisions, adaptations, and rearrangements.—Section 1303 of title 17, United States Code, is amended by adding at the end the following: “The presence or absence of a particular color or colors or of a pictorial or graphic work imprinted on fabric shall not be considered in determining the protection of a fashion design under section 1301 or 1302 or in determining infringement under section 1309.”.
(d) Term of
protection.—Section 1305(a) of title 17, United States Code, is
amended to read as follows: “(a) In
general.—Subject to subsection
(b), the protection provided under this chapter— “(1) for a design of a
vessel hull, shall continue for a term of 10 years beginning on the date of the
commencement of protection under section 1304; and “(2) for a fashion
design, shall continue for a term of 3 years beginning on the date of the
commencement of protection under section
1304.”.
(e) Infringement.—Section
1309 of title 17, United States Code, is amended— (1) in subsection (c)— (A) by inserting “offer for sale,
advertise,” after “sell,”; and (B) by inserting “either actual or
reasonably inferred from the totality of the circumstances,” after
“created without knowledge”;
(2) by amending
subsection (e) to read as follows: “(e) Infringing
article defined.— “(1) IN
GENERAL.—As used in this
section, an ‘infringing article’ is any article the design of which
has been copied from a design protected under this chapter, or from an image
thereof, without the consent of the owner of the protected design. An
infringing article is not an illustration or picture of a protected design in
an advertisement, book, periodical, newspaper, photograph, broadcast, motion
picture, or similar medium. “(2) VESSEL HULL
DESIGN.—In the case of a design of a vessel hull, a design shall
not be deemed to have been copied from a protected design if it is original and
not substantially similar in appearance to a protected design.
“(3) FASHION
DESIGN.—In the case of a fashion design, a design shall not be
deemed to have been copied from a protected design if that design— “(A) is not
substantially identical in overall visual appearance to and as to the original
elements of a protected design; or
“(B) is the result of independent creation.”; and
(3) by adding at the
end the following: “(h) Secondary
liability.—The doctrines of secondary infringement or secondary
liability that are applied in actions under chapter 5 of this title apply to
the same extent to actions under this chapter. Any person who is liable under
either such doctrine under this chapter is subject to all the remedies provided
under this chapter, including those attributable to any underlying or resulting
infringement.
“(i) Home sewing
exception.— “(1) IN
GENERAL.—It is not an infringement of the exclusive rights of a
design owner for a person to produce a single copy of a protected design for
personal use or for the use of an immediate family member, if that copy is not
offered for sale or use in trade during the period of protection.
“(2) RULE OF CONSTRUCTION.—Nothing in this subsection shall be construed to permit the publication or distribution of instructions or patterns for the copying of a protected design.”.
(f) Application for
registration.—Section 1310(a) of title 17, United States Code, is
amended— (1) by striking
“Protection under this chapter” and inserting “In the case
of a design of a vessel hull, protection under this chapter”; and
(2) by adding “Registration shall not apply to fashion designs.” after “first made public.”.
(g) Remedy for
infringement.—Section 1321 of title 17, United States Code, is
amended— (1) by striking
subsection (a) and inserting the following: “(a) In
General.— “(1) VESSEL
HULL.—In the case of a vessel hull, the owner of a design is
entitled, after issuance of a certificate of registration of the design under
this chapter, to institute an action for any infringement of the design. “(2) FASHION
DESIGN.—In the case of a fashion design, the owner of a design is
entitled to institute an action for any infringement of the design after the
design is made public under the terms of section 1310(b) of this
chapter.”;
and
(2) by adding at the
end the following: “(e) Pleading
requirement for fashion designs.— “(1) IN
GENERAL.—In the case of a fashion design, a claimant in an action
for infringement shall plead with particularity facts establishing that— “(A) the design of the
claimant is protected under this chapter; “(B) the design of the
defendant infringes upon the protected design as described under section
1309(e); and “(C) the protected
design or an image thereof was available in such location or locations, in such
a manner, and for such duration that it can be reasonably inferred from the
totality of the surrounding facts and circumstances that the defendant saw or
otherwise had knowledge of the protected design.
“(2) CONSIDERATIONS.—In considering whether a claim for infringement has been adequately pleaded, the court shall consider the totality of the circumstances.”.
(h) Penalty for
false representation.—Section 1327 of title 17, United States
Code, is amended— (1) by inserting
“or for purposes of obtaining recovery based on a claim of infringement
under this chapter” after “registration of a design under this
chapter”;
(2) by striking “$500” and inserting “5,000”; and
(3) by striking “$1,000” and inserting “$10,000”.
(i) Nonapplicability
of enforcement by Treasury and Postal Service.—Section 1328 of
title 17, United States Code, is amended— (1) in subsection (a),
in the first sentence, by striking “The Secretary” and inserting
“In the case of designs of vessel hulls protected under this chapter, the
Secretary”;
(2) in subsection (b), in the first sentence, by striking “Articles” and inserting “In the case of designs of vessel hulls protected under this chapter, articles”; and
(3) by adding at the
end the following: “(c) Nonapplicability.—This
section shall not apply to fashion designs protected under this
chapter.”.
(j) Common law and
other rights unaffected.—Section 1330 of title 17, United States
Code, is amended— (1) in paragraph (1),
by striking “or” after the semicolon;
(2) in paragraph (2), by striking the period and inserting “; or”; and
(3) by adding at the
end the following: “(3) any rights that may exist under provisions
of this title other than this
chapter.”.
This Act and the amendments made by this Act shall take effect on the date of enactment of this Act.
This Act may be cited as the “Innovative Design Protection and Piracy Prevention Act”.
SEC. 2. Amendments to title 17, United States Code.
(a) Designs protected.—Section 1301 of title 17, United States Code, is amended—
(2) in subsection (b)—
(B) by adding at the end the following:
“(7) A ‘fashion design’—
“(8) The term ‘design’ includes fashion design, except to the extent expressly limited to the design of a vessel.
(3) by adding at the end the
following: “(c) Rule of
construction.—In the case of a fashion design under this chapter,
those differences or variations which are considered non-trivial for the
purposes of establishing that a design is subject to protection under
subsection (b)(7) shall be considered non-trivial for the purposes of
establishing that a defendant’s design is not substantially identical under
subsection (b)(10) and section
1309(e).”.
(b) Designs not subject to protection.—Section 1302(5) of title 17, United States Code, is amended—
(3) by adding at the end the following:
“(B) in the case of a fashion design, embodied in a useful article that was made public by the designer or owner in the United States or a foreign country before the date of enactment of this chapter or more than 3 years before the date upon which protection of the design is asserted under this chapter.”.
(c) Revisions, adaptations, and rearrangements.—Section 1303 of title 17, United States Code, is amended by adding at the end the following: “The presence or absence of a particular color or colors or of a pictorial or graphic work imprinted on fabric shall not be considered in determining the protection of a fashion design under section 1301 or 1302 or in determining infringement under section 1309.”.
(d) Term of protection.—Section 1305(a) of title 17, United States Code, is amended to read as follows:
(e) Infringement.—Section 1309 of title 17, United States Code, is amended—
(2) by amending subsection
(e) to read as follows: “(e) Infringing article
defined.— “(1) IN
GENERAL.—As used in this
section, an ‘infringing article’ is any article the design of which
has been copied from a design protected under this chapter, or from an image
thereof, without the consent of the owner of the protected design. An
infringing article is not an illustration or picture of a protected design in
an advertisement, book, periodical, newspaper, photograph, broadcast, motion
picture, or similar medium. “(2) VESSEL HULL
DESIGN.—In the case of a design of a vessel hull, a design shall
not be deemed to have been copied from a protected design if it is original and
not substantially similar in appearance to a protected design.
(3) by adding at the end the
following: “(h) Home sewing
exception.—
(f) Application for registration.—Section 1310(a) of title 17, United States Code, is amended—
(g) Remedy for infringement.—Section 1321 of title 17, United States Code, is amended—
(1) by striking subsection (a) and inserting the following:
(2) by adding at the end the
following: “(e) Pleading requirement
for fashion designs.— “(1) IN
GENERAL.—In the case of a fashion design, a claimant in an action
for infringement shall plead with particularity facts establishing that— “(A) the design of the
claimant is a fashion design within the meaning of section 1301(a)(7) of this
title and thus entitled to protection under this chapter; “(B) the design of the
defendant infringes upon the protected design as described under section
1309(e); and “(C) the protected design or
an image thereof was available in such location or locations, in such a manner,
and for such duration that it can be reasonably inferred from the totality of
the surrounding facts and circumstances that the defendant saw or otherwise had
knowledge of the protected design.
(h) Penalty for false representation.—Section 1327 of title 17, United States Code, is amended—
(i) Nonapplicability of enforcement by Treasury and Postal Service.—Section 1328 of title 17, United States Code, is amended—
(1) in subsection (a), in the first sentence, by striking “The Secretary” and inserting “In the case of designs of vessel hulls protected under this chapter, the Secretary”;
(j) Common law and other rights unaffected.—Section 1330 of title 17, United States Code, is amended—
This Act and the amendments made by this Act shall take effect on the date of enactment of this Act.
Calendar No. 674 | |||||
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A BILL | |||||
To amend title 17, United States Code, to extend
protection to fashion design, and for other purposes.
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December 6, 2010 | |||||
Reported with an amendment |