S 3728 ISRSCommentsClose CommentsPermalink

To amend title 17, United States Code, to extend protection to fashion design, and for other purposes.CommentsClose CommentsPermalink

August 5, 2010CommentsClose CommentsPermalink

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 JudiciaryCommentsClose CommentsPermalink

To amend title 17, United States Code, to extend protection to fashion design, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Innovative Design Protection and Piracy Prevention Act’. CommentsClose CommentsPermalink

SEC. 2. AMENDMENTS TO TITLE 17, UNITED STATES CODE.

(a) Designs Protected-Section 1301 of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in subsection (a), by adding at the end the following: CommentsClose CommentsPermalink





‘(4) FASHION DESIGN- A fashion design is subject to protection under this chapter.’; CommentsClose CommentsPermalink





(2) in subsection (b)-- CommentsClose CommentsPermalink





(A) in paragraph (2), by inserting ‘, or an article of apparel,’ after ‘plug or mold’; and CommentsClose CommentsPermalink





(B) by adding at the end the following: CommentsClose CommentsPermalink





‘(7) A ‘fashion design’-- CommentsClose CommentsPermalink





‘(A) is the appearance as a whole of an article of apparel, including its ornamentation; and CommentsClose CommentsPermalink





‘(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-- CommentsClose CommentsPermalink





‘(i) are the result of a designer’s own creative endeavor; and CommentsClose CommentsPermalink





‘(ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles. CommentsClose CommentsPermalink





‘(8) The term ‘design’ includes fashion design, except to the extent expressly limited to the design of a vessel. CommentsClose CommentsPermalink





‘(9) The term ‘apparel’ means-- CommentsClose CommentsPermalink





‘(A) an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; CommentsClose CommentsPermalink





‘(B) handbags, purses, wallets, duffel bags, suitcases, tote bags, and belts; and CommentsClose CommentsPermalink





‘(C) eyeglass frames. CommentsClose CommentsPermalink





‘(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 CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(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).’. CommentsClose CommentsPermalink





(b) Designs Not Subject to Protection-Section 1302(5) of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) by striking ‘(5)’ and inserting ‘(5)(A) in the case of a design of a vessel hull,’; CommentsClose CommentsPermalink





(2) by striking the period and inserting ‘; or’; and CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(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.’. CommentsClose CommentsPermalink





(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.’. CommentsClose CommentsPermalink





(d) Term of Protection-Section 1305(a) of title 17, United States Code, is amended to read as follows: CommentsClose CommentsPermalink





‘(a) In General- Subject to subsection (b), the protection provided under this chapter-- CommentsClose CommentsPermalink





‘(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 CommentsClose CommentsPermalink





‘(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.’. CommentsClose CommentsPermalink





(e) Infringement-Section 1309 of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in subsection (c)-- CommentsClose CommentsPermalink





(A) by inserting ‘offer for sale, advertise,’ after ‘sell,’; and CommentsClose CommentsPermalink





(B) by inserting ‘either actual or reasonably inferred from the totality of the circumstances,’ after ‘created without knowledge’; CommentsClose CommentsPermalink





(2) by amending subsection (e) to read as follows: CommentsClose CommentsPermalink





‘(e) Infringing Article Defined- CommentsClose CommentsPermalink





‘(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. CommentsClose CommentsPermalink





‘(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. CommentsClose CommentsPermalink





‘(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-- CommentsClose CommentsPermalink





‘(A) is not substantially identical in overall visual appearance to and as to the original elements of a protected design; or CommentsClose CommentsPermalink





‘(B) is the result of independent creation.’; and CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(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- CommentsClose CommentsPermalink





‘(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. CommentsClose CommentsPermalink





‘(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.’. CommentsClose CommentsPermalink





(f) Application for Registration-Section 1310(a) of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) by striking ‘Protection under this chapter’ and inserting ‘In the case of a design of a vessel hull, protection under this chapter’; and CommentsClose CommentsPermalink





(2) by adding ‘Registration shall not apply to fashion designs.’ after ‘first made public.’. CommentsClose CommentsPermalink





(g) Remedy for Infringement-Section 1321 of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) by striking subsection (a) and inserting the following: CommentsClose CommentsPermalink





‘(a) In General- CommentsClose CommentsPermalink





‘(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. CommentsClose CommentsPermalink





‘(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 CommentsClose CommentsPermalink





(2) by adding at the end the following: CommentsClose CommentsPermalink





‘(e) Pleading Requirement for Fashion Designs- CommentsClose CommentsPermalink





‘(1) IN GENERAL- In the case of a fashion design, a claimant in an action for infringement shall plead with particularity facts establishing that-- CommentsClose CommentsPermalink





‘(A) the design of the claimant is protecteda fashion design within the meaning of section 1301(a)(7) of this title and thus entitled to protection under this chapter; CommentsClose CommentsPermalink





‘(B) the design of the defendant infringes upon the protected design as described under section 1309(e); and CommentsClose CommentsPermalink





‘(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. CommentsClose CommentsPermalink





‘(2) CONSIDERATIONS- In considering whether a claim for infringement has been adequately pleaded, the court shall consider the totality of the circumstances.’. CommentsClose CommentsPermalink





(h) Penalty for False Representation-Section 1327 of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(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’; CommentsClose CommentsPermalink





(2) by striking ‘$500’ and inserting ‘5,000’; and CommentsClose CommentsPermalink





(3) by striking ‘$1,000’ and inserting ‘$10,000’. CommentsClose CommentsPermalink





(i) Nonapplicability of Enforcement by Treasury and Postal Service-Section 1328 of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(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’; CommentsClose CommentsPermalink





(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 CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(c) Nonapplicability- This section shall not apply to fashion designs protected under this chapter.’. CommentsClose CommentsPermalink





(j) Common Law and Other Rights Unaffected-Section 1330 of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in paragraph (1), by striking ‘or’ after the semicolon; CommentsClose CommentsPermalink





(2) in paragraph (2), by striking the period and inserting ‘; or’; and CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(3) any rights that may exist under provisions of this title other than this chapter.’. CommentsClose CommentsPermalink

SEC. 3. EFFECTIVE DATE.

This Act and the amendments made by this Act shall take effect on the date of enactment of this Act. CommentsClose CommentsPermalink