REGISTRATION OF TEXTILE FABRIC DESIGNS WEDNESDAY, MAY 21, 1947 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON PATENTS, TRADE MARKS, AND Washington, D. C. The Subcommittee on Patents, Trade Marks, and Copyrights of the Committee on the Judiciary met in the committee room, 346 Old House Office Building, at 10 a. m., Hon. Earl R. Lewis, subcommittee chairman, presiding. Other subcommittee members present were Hon. E. Wallace Chadwick, Hon. Kenneth B. Keating, and Hon. Joseph R. Bryson. Mr. LEWIS. The committee will come to order, please. The hearing this morning is on H. R. 2860, a bill to provide protection for designs for textile fabrics. Without objection, a copy of the bill will be inserted in the record at this point. (H. R. 2860 is as follows:) [H. R. 2860, 80th Cong., 1st sess.] A BILL To provide protection for designs for textile fabrics Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, DEFINITIONS SECTION 1. In the construction of this Act (a) A "textile" means a woven, knitted, or lace textile fabric. (b) A "textile design" means a pattern for any textile, whether such design be woven into or applied to the surface or incorporated into the surface or fiber of yarn of the textile. (c) A "novel textile design" means a design which has never before, anywhere in the world, been represented pictorially as a textile design or been applied to or incorporated in any textile. (d) A "registered textile design" means a novel textile design which has been registered in accordance with the provisions of this Act. (e) A "protected textile design" means a registered textile design as to which the protection provided for by this Act still endures. (f) An "infringing textile" means a textile to which has been applied or in which has been incorporated any protected textile design or any substantial resemblance or imitation thereof without the written consent of the owner of such design. (g) An "author" means the original creator of a novel textile design. APPLICATION FOR REGISTRATION SEC. 2. Any person, whether or not a citizen of the United States, who is the author of a novel textile design or the assignee of the author, may procure registration of such design by filing with the Register of Copyrights a verified application therefor, with two specimens, drawings, photographs, or other identifying representations showing the complete design and a fee of $10. The application shall include the name and address of the applicant, together with such other information as the Register of Copyrights shall require. The application must be filed before the textile design has been published in any book, magazine, or newspaper, or publicly exhibited or commercially distributed. The rights of priority provided for industrial designs in the Convention for the Protection of Industrial Property signed at London in 1934 are hereby made applicable to textile designs registered under the provisions of this Act. FILE OF TEXTILE DESIGNS SEC. 3. The Register of Copyrights shall establish a file containing all registered textile designs and such other textile designs as he may see fit to include. This file shall be open to public inspection and any person making application therefor shall have a certified copy of any part of the file or any other record in the Copyright Office authenticated by the seal of the Coypright Office on payment of $1 for each page copied and $2 for the certification. A copy so authenticated shall be admitted in any court as prima facie evidence on the part of the file or record copied with the same force and effect as if that part of the original or record had been produced in evidence. ISSUANCE OF CERTIFICATE OF REGISTRATION SEC. 4. Upon receipt of an application for the registration of a textile design, the Register of Copyrights shall cause the application to be examined and a search to be made and, if he finds the application to be in proper form and the textile design to be original and novel and not substantially to resemble in appearance a prior textile design, shall, within seven days from the date of application, issue a certificate of registration under seal to the applicant to which shall be attached a drawing, photograph, or other identifying representation of the textile design. If on examination registration is refused, the Register of Copyrights shall notify the applicant, giving his reasons for refusal. THE CERTIFICATE OF REGISTRATION SEC. 5. The certificate of registration shall be dated and numbered and state it is issued after an examination and search and that the applicant or his assignor is the author of the textile design and that it is novel. Additional certificates shall, upon payment of $2 each, be given to any person making application therefor and shall have the same force and effect as the original. The certificates of registration shall be admitted in any court as prima facie evidence of the facts stated therein. APPEAL FROM REFUSAL TO REGISTER SEC. 6. Every applicant for registration who is refused registration may, within thirty days of such refusal on payment of a fee of $10, appeal to the Register of Copyrights in person. Each appeal shall be set for oral hearing before, and shall be decided by, either the Register of Copyrights or the Associate Register of Copyrights or the senior attorney of the Copyright Office, as may be designated by the Register of Copyrights. PERIOD OF PROTECTION SEC. 7. The protection secured by registration under this Act shall endure for one year from the date of the certificate of registration: Provided, That if the owner of the textile design during such year files with the Register of Copyrights an application for extension of protection with an affidavit that the textile design has been applied to or incorporated in a textile made or sold in the United States, and a fee of $10, the protection shall endure for five years from the date of the original certificate, and a certificate of such extension shall be issued by the Register of Copyrights under seal. MARKING OF TEXTILES CONTAINING PROTECTED TEXTILE DESIGNS SEC. 8. The owner of any protected textile design or his assignee or licensee shall cause every textile to which the design has been applied or in which it has been incorporated, or the wrapper or package in which the textile is contained, to be marked before delivery or sale with the words "Textile Registered" or the letter "T" in a circle, thus "". Where the design is repeated on a textile, it shall not be necessary so to mark each occurrence of the design, but a single marking on each ordinary unit of sale or its wrapper or package shall be sufficient. Failure so to make the textile or its wrapper or container shall preclude recovery of damages or profits for a violation or infringement occurring before the date of actual notice that the design is a protected textile design. VIOLATIONS AND REMEDIES SEC. 9. It shall constitute a violation of this Act for any person to(a) Manufacture any infringing textile; or (b) Do anything with a view to enable another to manufacture any infringing textile; or (c) Sell or offer for sale, or cause to be sold or offered for sale, without the written consent of the owner of the protected textile design, and infringing textile knowing it to be such, except that a distributor at retail to the general public shall not be deemed to violate subsections (b) and (c), unless (i) he sells infringing textile, which he has purchased after receiving written notice that a temporary restraining order or an injunction, either preliminary or final, has been issued forbidding the manufacture or sale of the infringing textile, together with a sample or copy of the enjoined design; or (ii) upon the request of the owner of the protected textile design, he refuses or fails to make to such owner a prompt and full disclosure of the source and particulars of the purchase of the infringing textile; or (iii) he induced, or acted in collusion with, a manufacturer to make or an an importer to import, the infringing textile. Purchasing, or giving an order for purchase, in the ordinary course of business shall not in itself constitute such inducement or collusion. It shall not constitute a violation of this Act to make, distribute, exhibit, license for exhibition, rent, or sell an illustration or pictorial representation of any protected textile design or of any textile, or of wearing apparel, or of patterns for wearing apparel, or to manufacture, sell, or distribute a pattern for wearing apparel. The owner of the registration shall have against any person acting in contravention of this section the same rights to sue and recover as for infringement of copyright in the United States courts having jurisdiction of suits under the copyright laws in accordance with the rules and regulations for practice and procedure prescribed by the Supreme Court of the United States for suits under the Copyright law. EFFECT OF CERTIFICATE OF REGISTRATION; ISSUANCE OF INJUNCTION SEC. 10. When a certificate of registration has been issued by the Register of Copyrights after search and examination, there shall be, on production of the certificate of registration, in any action or suit involving the same a presumption of originality and novelty in the registered textile design and of validity in the registration thereof; and a presumption of infringement shall be held to arise from substantial visual similarity to the registered textile design in defendant's design. On any motion for a temporary restraining order or a preliminary injunction, on production of a certificate of registration, the court, in the absence of other proof, shall hold the textile design covered by the certificate of registration to be original, novel, and properly registered, and if the court finds a substantial resemblance between the registered textile design and the defendant's design, a temporary restraining order or a preliminary injunction against infringement shall be issued forthwith upon such terms as the court shall deem proper. Nothing in this section shall prevent any party from presenting, or any court from receiving, in any action, any relevant proof. PENALTY FOR FRAUDULENT REGISTRATION OF USE THEREOF SEC. 11. Any person who shall (a) register a textile design knowing that any of the statements contained in the application for registration are false or (b) with fraudulent intent place the notice of registration provided by this Act upon any textile not bearing a registered textile design of (c) sell or distribute any textile bearing the notice of registration knowing that it has not been registered, shall be guilty of a misdemeanor and liable to a fine of not less than $100 and not more than $1,000. PENALTY FOR FALSE SUIT SEC. 12. Any person who shall bring an action or suit for infringement of a textile design alleged to be protected under this Act, and known by the plaintiff not to be an original work of authorship as alleged in the application to register said design, shall on showing of such knowledge 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 against the plaintiff and paid to the defendant, in addition to the taxable costs and counsel fees of the defendant as assessed by the court. ASSIGNMENTS AND THEIR RECORDING SEC. 13. The provisions of law with respect to assignments of copyright and recording thereof shall apply to assignments of registered textile designs, but every license or assignment of a registered design shall be recorded in the Copyright Office within ten days after its execution in the United States or within thirty days after its execution without the limits of the United States. In default of recordation in such times, it shall be void as against any subsequent purchaser, or mortgage for a valuable consideration, without notice, whose license or assignment is recorded within said ten or thirty days of its execution or is executed prior to the recordation in the Copyright Office of the said prior license or assignment. AUTHORITY TO MAKE RULES SEC. 14. The Register of Copyrights shall have authority to make rules for proceedings in the Copyright Office under this Act. IMPORTATIONS SEC. 15. All infringing textiles manufactured or processed in any foreign country and subsequently imported or about to be imported into the United States or its possessions are subject to all the terms and provisions of this Act just as if such textiles were entirely of domestic origin. The corporation, partnership, or individual making the import entry shall be liable in full for any violation, infringement, or penalty or damages arising therefrom, in addition to the liability of any other person under this Act, any other provisions of this Act to the contrary notwithstanding. DESIGN PATENTS ABOLISHED SEC. 16. No patent for any textile design shall issue under sections 4929 and 4931 of the Revised Statutes on an application filed after this Act takes effect. EFFECTIVE DATE OF ACT SEC. 17. This Act shall take effect six months after its enactment and shall apply only to designs originating thereafter. SEC. 18. If any provision of this Act or the application of such provision to any person or circumstance is held invalid, the remainder of the Act shall not be affected thereby. Mr. LEWIS. The author of the bill, Congressman Hartley, is present and I will call on him first. |