H. R. 2281—50
or who, without knowledge of the protected design embodied in
an infringing article, makes or processes the infringing article for
the account of another person in the ordinary course of business,
shall not be deemed to have infringed the rights in that design
under this chapter except under a condition contained in paragraph
(1) or (2) of subsection (b). Accepting an order or reorder from
the source of the infringing article shall be deemed ordering or
reordering within the meaning of subsection (b)(2).
‘‘(e) INFRINGING ARTICLE DEFINED.—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, 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 advertise-
ment, book, periodical, newspaper, photograph, broadcast, motion
picture, or similar medium. A design shall not be deemed to have
been copied from a protected design if it is original and not substan-
tially similar in appearance to a protected design.
‘‘(f ) ESTABLISHING ORIGINALITY.—The party to any action or
proceeding under this chapter who alleges rights under this chapter
in a design shall have the burden of establishing the design’s
originality whenever the opposing party introduces an earlier work
which is identical to such design, or so similar as to make prima
facie showing that such design was copied from such work.
‘‘(g) REPRODUCTION FOR TEACHING OR ANALYSIS.—It is not an
infringement of the exclusive rights of a design owner for a person
to reproduce the design in a useful article or in any other form
solely for the purpose of teaching, analyzing, or evaluating the
appearance, concepts, or techniques embodied in the design, or
the function of the useful article embodying the design.
‘‘§ 1310. Application for registration
‘‘(a) TIME LIMIT FOR APPLICATION FOR REGISTRATION.—Protec-
tion under this chapter shall be lost if application for registration
of the design is not made within 2 years after the date on which
the design is first made public.
‘‘(b) WHEN DESIGN IS MADE PUBLIC.—A design is made public
when an existing useful article embodying the design is anywhere
publicly exhibited, publicly distributed, or offered for sale or sold
to the public by the owner of the design or with the owner’s
consent.
‘‘(c) APPLICATION BY OWNER OF DESIGN.—Application for reg-
istration may be made by the owner of the design.
‘‘(d) CONTENTS OF APPLICATION.—The application for registra-
tion shall be made to the Administrator and shall state—
‘‘(1) the name and address of the designer or designers
of the design;
‘‘(2) the name and address of the owner if different from
the designer;
‘‘(3) the specific name of the useful article embodying the
design;
‘‘(4) the date, if any, that the design was first made public,
if such date was earlier than the date of the application;
‘‘(5) affirmation that the design has been fixed in a useful
article; and
‘‘(6) such other information as may be required by the
Administrator.
H. R. 2281—51
The application for registration may include a description setting
forth the salient features of the design, but the absence of such
a description shall not prevent registration under this chapter.
‘‘(e) SWORN STATEMENT.—The application for registration shall
be accompanied by a statement under oath by the applicant or
the applicant’s duly authorized agent or representative, setting
forth, to the best of the applicant’s knowledge and belief—
‘‘(1) that the design is original and was created by the
designer or designers named in the application;
‘‘(2) that the design has not previously been registered
on behalf of the applicant or the applicant’s predecessor in
title; and
‘‘(3) that the applicant is the person entitled to protection
and to registration under this chapter.
If the design has been made public with the design notice prescribed
in section 1306, the statement shall also describe the exact form
and position of the design notice.
‘‘(f ) EFFECT OF ERRORS.—(1) Error in any statement or asser-
tion as to the utility of the useful article named in the application
under this section, the design of which is sought to be registered,
shall not affect the protection secured under this chapter.
‘‘(2) Errors in omitting a joint designer or in naming an alleged
joint designer shall not affect the validity of the registration, or
the actual ownership or the protection of the design, unless it
is shown that the error occurred with deceptive intent.
‘‘(g) DESIGN MADE IN SCOPE OF EMPLOYMENT.—In a case in
which the design was made within the regular scope of the design-
er’s employment and individual authorship of the design is difficult
or impossible to ascribe and the application so states, the name
and address of the employer for whom the design was made may
be stated instead of that of the individual designer.
‘‘(h) PICTORIAL REPRESENTATION OF DESIGN.—The application
for registration shall be accompanied by two copies of a drawing
or other pictorial representation of the useful article embodying
the design, having one or more views, adequate to show the design,
in a form and style suitable for reproduction, which shall be deemed
a part of the application.
‘‘(i) DESIGN IN MORE THAN ONE USEFUL ARTICLE.—If the distin-
guishing elements of a design are in substantially the same form
in different useful articles, the design shall be protected as to
all such useful articles when protected as to one of them, but
not more than one registration shall be required for the design.
‘‘( j) APPLICATION FOR MORE THAN ONE DESIGN.—More than
one design may be included in the same application under such
conditions as may be prescribed by the Administrator. For each
design included in an application the fee prescribed for a single
design shall be paid.
‘‘§ 1311. Benefit of earlier filing date in foreign country
‘‘An application for registration of a design filed in the United
States by any person who has, or whose legal representative or
predecessor or successor in title has, previously filed an application
for registration of the same design in a foreign country which
extends to designs of owners who are citizens of the United States,
or to applications filed under this chapter, similar protection to
that provided under this chapter shall have that same effect as
if filed in the United States on the date on which the application
H. R. 2281—52
was first filed in such foreign country, if the application in the
United States is filed within 6 months after the earliest date
on which any such foreign application was filed.
‘‘§ 1312. Oaths and acknowledgments
‘‘(a) IN GENERAL.—Oaths and acknowledgments required by
this chapter—
‘‘(1) may be made—
‘‘(A) before any person in the United States authorized
by law to administer oaths; or
‘‘(B) when made in a foreign country, before any diplo-
matic or consular officer of the United States authorized
to administer oaths, or before any official authorized to
administer oaths in the foreign country concerned, whose
authority shall be proved by a certificate of a diplomatic
or consular officer of the United States; and
‘‘(2) shall be valid if they comply with the laws of the
State or country where made.
‘‘(b) WRITTEN DECLARATION IN LIEU OF OATH.—(1) The Adminis-
trator may by rule prescribe that any document which is to be
filed under this chapter in the Office of the Administrator and
which is required by any law, rule, or other regulation to be under
oath, may be subscribed to by a written declaration in such form
as the Administrator may prescribe, and such declaration shall
be in lieu of the oath otherwise required.
‘‘(2) Whenever a written declaration under paragraph (1) is
used, the document containing the declaration shall state that
willful false statements are punishable by fine or imprisonment,
or both, pursuant to section 1001 of title 18, and may jeopardize
the validity of the application or document or a registration result-
ing therefrom.
‘‘§ 1313. Examination of application and issue or refusal of
registration
‘‘(a) DETERMINATION OF REGISTRABILITY OF DESIGN; REGISTRA-
TION.—Upon the filing of an application for registration in proper
form under section 1310, and upon payment of the fee prescribed
under section 1316, the Administrator shall determine whether
or not the application relates to a design which on its face appears
to be subject to protection under this chapter, and, if so, the Register
shall register the design. Registration under this subsection shall
be announced by publication. The date of registration shall be
the date of publication.
‘‘(b) REFUSAL TO REGISTER; RECONSIDERATION.—If, in the judg-
ment of the Administrator, the application for registration relates
to a design which on its face is not subject to protection under
this chapter, the Administrator shall send to the applicant a notice
of refusal to register and the grounds for the refusal. Within 3
months after the date on which the notice of refusal is sent, the
applicant may, by written request, seek reconsideration of the
application. After consideration of such a request, the Administrator
shall either register the design or send to the applicant a notice
of final refusal to register.
‘‘(c) APPLICATION TO CANCEL REGISTRATION.—Any person who
believes he or she is or will be damaged by a registration under
this chapter may, upon payment of the prescribed fee, apply to
the Administrator at any time to cancel the registration on the
H. R. 2281—53
ground that the design is not subject to protection under this
chapter, stating the reasons for the request. Upon receipt of an
application for cancellation, the Administrator shall send to the
owner of the design, as shown in the records of the Office of
the Administrator, a notice of the application, and the owner shall
have a period of 3 months after the date on which such notice
is mailed in which to present arguments to the Administrator
for support of the validity of the registration. The Administrator
shall also have the authority to establish, by regulation, conditions
under which the opposing parties may appear and be heard in
support of their arguments. If, after the periods provided for the
presentation of arguments have expired, the Administrator deter-
mines that the applicant for cancellation has established that the
design is not subject to protection under this chapter, the Adminis-
trator shall order the registration stricken from the record. Can-
cellation under this subsection shall be announced by publication,
and notice of the Administrator’s final determination with respect
to any application for cancellation shall be sent to the applicant
and to the owner of record.
‘‘§ 1314. Certification of registration
‘‘Certificates of registration shall be issued in the name of
the United States under the seal of the Office of the Administrator
and shall be recorded in the official records of the Office. The
certificate shall state the name of the useful article, the date of
filing of the application, the date of registration, and the date
the design was made public, if earlier than the date of filing
of the application, and shall contain a reproduction of the drawing
or other pictorial representation of the design. If a description
of the salient features of the design appears in the application,
the description shall also appear in the certificate. A certificate
of registration shall be admitted in any court as prima facie evidence
of the facts stated in the certificate.
‘‘§ 1315. Publication of announcements and indexes
‘‘(a) PUBLICATIONS OF THE ADMINISTRATOR.—The Administrator
shall publish lists and indexes of registered designs and cancella-
tions of designs and may also publish the drawings or other pictorial
representations of registered designs for sale or other distribution.
‘‘(b) FILE OF REPRESENTATIVES OF REGISTERED DESIGNS.—The
Administrator shall establish and maintain a file of the drawings
or other pictorial representations of registered designs. The file
shall be available for use by the public under such conditions
as the Administrator may prescribe.
‘‘§ 1316. Fees
‘‘The Administrator shall by regulation set reasonable fees for
the filing of applications to register designs under this chapter
and for other services relating to the administration of this chapter,
taking into consideration the cost of providing these services and
the benefit of a public record.
‘‘§ 1317. Regulations
‘‘The Administrator may establish regulations for the adminis-
tration of this chapter.