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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10550 Introduced in House (IH)]

<DOC>

118th CONGRESS
  2d Session
                               H. R. 10550

  To amend the Trademark Act of 1946 to clarify the applicability of 
 Federal trademark law in the area of digital replicas of identifying 
        characteristics of individuals, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           December 20, 2024

  Mr. Issa (for himself, Mr. Obernolte, and Mr. Cline) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
  To amend the Trademark Act of 1946 to clarify the applicability of 
 Federal trademark law in the area of digital replicas of identifying 
        characteristics of individuals, 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 ``Preventing Abuse of Digital Replicas 
Act''.

SEC. 2. APPLICABILITY OF FEDERAL TRADEMARK LAW IN THE AREA OF DIGITAL 
              REPLICAS OF IDENTIFYING CHARACTERISTICS OF INDIVIDUALS.

    (a) In General.--Section 43 of the Trademark Act of 1946 (15 U.S.C. 
1125) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by striking ``or device,'' 
                and inserting ``device, or digital replica,''; and
                    (B) by adding at the end the following:
    ``(4) In a civil action brought pursuant to paragraph (1)(A) for 
the use of a digital replica by a person on or in connection with any 
goods or services, or any container for goods there shall be a 
rebuttable presumption that such use is likely to cause confusion, or 
to cause mistake, or to deceive as to the affiliation, connection, or 
association of such person with another person, or as to the origin, 
sponsorship, or approval of his or her goods, services, or commercial 
activities by another person.
    ``(5) A person shall not be liable in a civil action brought 
pursuant to paragraph (1)(A) for the use of a digital replica on or in 
connection with any goods or services, or any container for goods if 
such use is--
            ``(A) for bona fide news, public affairs, or sports 
        broadcast or account, or any portion thereof;
            ``(B) for bona fide commentary, criticism, satire, or 
        parody, or any portion thereof;
            ``(C) for bona fide scholarship or educational purposes;
            ``(D) a creative work, the character and purpose of which 
        is primarily expressive or artistic in nature rather than 
        commercial, or any portion thereof;
            ``(E) otherwise protected by the First Amendment to the 
        Constitution of the United States; or
            ``(F) any combination of the above.
    ``(6) With the exception of relief sought under sections 32 and 
43(c) of this Act, section 501 of title 17, and section 271 of title 
35, a person may not seek relief under any other provision of Federal, 
State, local, or municipal law for any use of a digital replica for 
which the person files a civil action asserting liability under this 
section and relies upon the rebuttable presumption in paragraph (4) in 
a pleading, dispositive motion, response to a dispositive motion, or at 
trial on the merits; and
    ``(7) This subsection shall be considered a law pertaining to 
intellectual property for the purposes of section 230(e) of the 
Communications Act of 1934 (47 U.S.C. 230).
    ``(8) In this subsection--
            ``(A) the term `digital replica' means computer-generated 
        representation of an identifying characteristic of a subject 
        person, who at the time of the use of the representation is a 
        living individual human being, where--
                    ``(i) the identifying characteristic is an image, 
                voice, likeness, or other characteristic of the subject 
                person, or a characteristic of the creative works of 
                the subject person, that is distinctive to the subject 
                person such that the use of such characteristic is 
                likely to be associated with the subject person and no 
                other person by reasonable and ordinary participants in 
                the relevant industry or market;
                    ``(ii) the representation is identical with, or 
                substantially indistinguishable from, the actual 
                identifying characteristic of the subject person from 
                the perspective of reasonable and ordinary participants 
                in the relevant industry or market; and
                    ``(iii) based on the representation itself, it is 
                apparent to reasonable and ordinary participants in the 
                relevant industry or market that the purpose of the 
                representation, in whole or in part, was to duplicate 
                the identifying characteristic of the subject person; 
                and
            ``(B) the term ``relevant industry or market'' means the 
        industry or market for the goods or services that are the 
        subject of the civil action brought pursuant to paragraph 
        (1)(A).''.
    (b) Rule of Construction.--Nothing in this Act, or the amendments 
made by this Act, may be construed so as to limit the scope of section 
43 of the Trademark Act of 1946 (15 U.S.C. 1125) as such section 
existed prior to the enactment of this Act.
    (c) Application.--This Act, and the amendments made by this Act, 
shall apply only to a civil action--
            (1) brought pursuant to section 43(a) of the Trademark Act 
        of 1946 after the date of the enactment of this Act; and
            (2) for the use of a digital replica on or in connection 
        with any goods or services, or any container for goods, after 
        the date of the enactment of this Act.
    (d) Severability.--If any provision of this Act, or the application 
thereof to any person or circumstance, is held invalid, the remainder 
of the Act, and the application of such provision to other persons or 
circumstances shall not be affected thereby.
    (e) Definition.--In this section, the term ``Trademark Act of 
1946'' means the Act entitled ``An Act to provide for the registration 
and protection of trademarks used in commerce, to carry out the 
provisions of certain international conventions, and for other 
purposes'', approved July 5, 1946.
                                 <all>
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