Trademark Law Revision Act of 1988
PL 100-667 (S.1883), enacted 11/16/1988

note. 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3935 
Public Law 100-667 
100th Congress 
An Act 
To amend the Act entitled "An Act to provide for the registration and protection of 
Nov. 16, 1988 
trade-marks used in commerce, to carry out the provisions of certain international 
[°- 1883] 
conventions, and for other purposes". 
Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 
TITLE I—TRADEMARK LAW REVISION 
Trademark Law 
Revision Act of 
1988. 
SEC. 101. SHORT TITLE. 
15 USC 1051 
This title may be cited as the "Trademark Law Revision Act of 
1988". 
SEC. 102. REFERENCE TO THE TRADEMARK ACT OF 1946. 
Except as otherwise expressly provided, whenever in this title an 
amendment is expressed in terms of an amendment to a section or 
other provision, the reference shall be considered to be made to a 
section or other provision of 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 (15 U.S.C. 1051 and 
following) (commonly referred to as the "Trademark Act of 1946"). 
SEC. 103. APPLICATION TO REGISTER TRADEMARKS. 
Section 1 (15 U.S.C. 1051) is amended— 
(1) in the matter before subsection (a), by striking out "may 
register his" and inserting in lieu thereof "may apply to register 
his or her"; 
(2) by redesignating paragraphs (1), (2), and (3) of subsection 
(a) as subparagraphs (A), (B), and (C), respectively; 
(3) by redesignating subsections (a), (b), and (c) as paragraphs 
(1), (2), and (3), respectively; 
(4) by insertmg "(a)" after "SECTION 1."; 
(5) in subsection (aXlXA), as redesignated by this section— 
(A) by striking out "applied to" and inserting in lieu 
thereof "used on or in connection with"; auid 
CB) by striking out "goods in connection" and inserting in 
lieu thereof "goods on or in connection"; 
(6) in subsection (aXlXC), as redesignated by this section, by 
striking out "actually"; 
(7) in subsection (aX2), as redesignated by this section, by 
striking out "filing" and inserting in lieu thereof "prescribed"; 
(8) by redesignating subsection (d) as subsection (e); and 
(9) by inserting before subsection (e), as redesignated by para-
graph (8) of this section, the following: 
"(b) A person who has a bona fide intention, under circumstances 
showing the good faith of such person, to use a trademark in 
102 STAT. 3936 
PUBLIC LAW 100-667—NOV. 16, 1988 
commerce may apply to roister the trademark under this Act on 
the principal roister hereby established: 
"(1) By filing in the Patent and Trademark Office— 
"(A) a written application, in such form as may be pre-
scribed by the Commissioner, verified by the applicant, or 
by a member of the firm or an officer of the corporation or 
association applying, specifying appUcant's domicile and 
citizenship, applicant's bona fide intention to use the mark 
in conmierce, the goods on or in connection with which the 
applicant has a bona fide intention to use the mark and the 
mode or manner in which the mark is intended to be used 
on or in connection with such goods, including a statement 
to the effect that the person making the verification be-
lieves himself or herself, or the firm, corporation, or 
association in whose behalf he or she makes the verifica-
tion, to be entitled to use the mark in commerce, and that 
no other person, firm, corporation, or association, to the 
best of his or her knowledge and belief, has the right to use 
such mark in conmierce either in the identical form of the 
mark or in such near resemblance to the mark as to be 
likely, when used on or in connection with the goods of such 
other person, to cause confusion, or to cause mistake, or to 
deceive; however, except for applications filed pursuant to 
section 44, no mark shall be roistered until the applicant 
has met the requirements of subsection (d) of this section; 
and 
"(B) a drawing of the mark. 
"(2) By paying in the Patent and Trademark Office the pre-
scribed fee. 
"(3) By (X)mplying with such rules or r^ulations, not 
inconsistent with law, as may be prescribed by the Commis-
sioner. 
"(c) At any time during examination of an application filed under 
subsection (b), an applicant who has made use of the mark in 
commerce may claim the benefits of such use for purposes of this 
Act, by amending his or her application to bring it into conformity 
with the requirements of subsection (a). 
"(dXD Within six months after the date on which the notice of 
allowance with respect to a mark is issued under section 13(bK2) to 
an applicant under subsection (b) of this section, the applicant shall 
file in the Patent and Trademark Office, together with such number 
of specimens or facsimiles of the mark as used in commerce as may 
be required by the Commissioner and payment of the prescribed fee, 
a verified statement that the mark is in use in commerce and 
spedfying the date of the appUcant's first use of the mark in 
commerce, those goods or services specified in the notice of allow-
ance on or in connection with which the mark is used in commerce, 
and the mode or maimer in which the mark is used on or in 
connection with such goods or services. Subject to examination and 
acceptance of the statement of use, the mark shall be roistered in 
the Patent and Trademark Office, a certificate of r^istration shall 
be issued for those goods or services recited in the statement of use 
for which the mark is entitled to r^istration, and notice of r^istra-
tion shall be publi^ed in the Official Gazette of the Patent and 
Trademark Office. Such examination may include an examination 
of the factors set forth in subsections (a) through (e) of section 2. The 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3937 
notice of registration shall specify the goods or services for which 
the mark is registered. 
"(2) The Commissioner shall extend, for one additional 6-month 
period, the time for filing the statement of use under paragraph (1), 
upon written request of the applicant before the expiration of the 6-
month period provided in paragraph (1). In addition to an extension 
under the preceding sentence, the Commissioner may, upon a show-
ing of good cause by the applicant, further extend the time for filing 
the statement of use under paragraph (1) for periods aggregating not 
more than 24 months, pursuant to written request of the applicant 
made before the expiration of the last extension granted under this 
paragraph. Any request for an extension under this paragraph shall 
be accompanied by a verified statement that the applicant has a 
continued bona fide intention to use the mark in commerce and 
specifying those goods or services identified in the notice of allow-
ance on or in connection with which the applicant has a continued 
bona fide intention to use the mark in commerce. Any request for an 
extension under this paragraph shall be accompanied by payment of 
the prescribed fee. The Commissioner shall issue regulations setting 
forth guidelines for determining what constitutes good cause for 
purposes of this paragraph. 
"(3) The Commissioner shall notify any applicant who files a 
statement of use of the acceptance or refusal thereof and, if the 
statement of use is refused, the reasons for the refusal. An applicant 
may amend the statement of use. 
"(4) The failure to timely file a verified statement of use under 
this subsection shall result in abandonment of the application.". 
SEC. 104. TRADEMARKS REGISTRABLE ON PRINCIPAL REGISTER. 
Section 2 (15 U.S.C. 1052) is amended— 
(1) by amending subsection (d) to read as follows: 
"(d) (Uonsists of or comprises a mark which so resembles a mark 
registered in the Patent and Trademark Office, or a mark or trade 
name previously used in the United States by another and not 
abandoned, as to be likely, when used on or in connection with the 
goods of the applicant, to cause confusion, or to cause mistake, or to 
deceive: Provided, That if the Commissioner determines that confu-
sion, mistake, or deception is not likely to result from the continued 
use by more than one person of the same or similar marks under 
conditions and limitations as to the mode or place of use of the 
marks or the goods on or in connection with which such marks are 
used, concurrent registrations may be issued to such persons when 
they have become entitled to use such marks as a result of their 
concurrent lawful use in commerce prior to (1) the earliest of the 
filing dates of the applications pending or of any registration issued 
under this Act; (2) July 5, 1947, in the case of registrations pre-
viously issued under the Act of March 3, 1881, or February 20, 1905, 
and continuing in full force and effect on that date; or (3) July 5, 
1947, in the case of applications filed under the Act of February 20, 
1905, and registered after July 5,1947. Use prior to the filing date of 
any pending application or a registration shall not be required when 
the owner of such application or registration consents to the grant of 
a concurrent registration to the applicant. Concurrent registrations 
may also be issued by the Commissioner when a court of competent 
jurisdiction has finally determined that more than one person is 
entitled to use the same or similar marks in commerce. In issuing 
concurrent registrations, the Commissioner shall prescribe condi-
102 STAT. 3938 
PUBLIC LAW 100-667—NOV. 16, 1988 
tions and limitations as to the mode or place of use of the mark or 
the goods on or in connection with which such mark is registered to 
the respective persons."; 
(2) in subsection (e) by striking out "applied to" each place it 
appears and inserting in lieu thereof "used on or in connection 
with"; and 
(3) in subsection (f)— 
(A) by striking out "applied to" and inserting in lieu 
thereof "used on or in connection with"; and 
(B) by striking out "five years" and all that follows 
through the end of the subsection and inserting in lieu 
thereof "five years before the date on which the claim of 
distinctiveness is made.". 
SEC. 105. SERVICE MARKS REGISTRABLE. 
Section 3 (15 U.S.C. 1053) is amended— 
(1) in the first sentence— 
(A) by striking out "used in commerce"; and 
(B) by striking out ", except when" and all that follows 
through "mark is used"; and 
(2) by striking out the second sentence. 
SEC. 106. COLLECTIVE AND CERTIFICATION MARKS REGISTRABLE. 
Section 4 (15 U.S.C. 1054) is amended— 
(1) in the first sentence— 
(A) by striking out "origin used in commerce," and insert-
ing in lieu thereof "origin,"; and 
(B) by striking out except when" and inserting in lieu 
thereof "except in the case of certification marks when"; 
and 
(2) by striking out the second sentence. 
SEC. 107. USE BY RELATED COMPANIES. 
Section 5 (15 U.S.C. 1055) is amended by adding at the end thereof 
the following: "If first use of a mark by a person is controlled by the 
registrant or applicant for registration of the mark with respect to 
the nature and quality of the goods or services, such first use shall 
inure to the benefit of the registrant or applicant, as the case may 
be.". 
SEC. 108. DISCLAIMER OF UNREGISTRABLE MATTER 
Section 6(b) (15 U.S.C. 1056(b)) is amended by striking out "para-
graph (d)" and inserting in lieu thereof "subsection (e)". 
SEC. 109. CERTIFICATE OF REGISTRATION ON THE PRINCIPAL REGISTER. 
Section 7 (15 U.S.C. 1057) is amended— 
(1) by amending subsection (b) to read as follows: 
"Ot)) A certificate of registration of a mark upon the principal 
register provided by this Act shall be prima facie evidence of the 
validity of the registered mark and of the registration of the mark, 
of the registrant^ ownership of the mark, and of the registrant's 
exclusive right to use the registered mark in commerce on or in 
connection with the goods or services specified in the certificate, 
subject to any conditions or limitations stated in the certificate."; 
(2) by redesignating subsections (c), (d), (e), (f), and (g) as 
subsections (d), (e), (f), (g), and (h), respectively; 
(3) by inserting after subsection O
t
)
) the following: 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3939 
"(c) Contiiigent on the registration of a mark on the principal 
roister provided by this Act, the filing of the application to roister 
such mark shall constitute constructive use of the mark, conferring 
a right of priority, nationwide in effect, on or in connection with the 
goods or services specified in the registration against any other 
person except for a person whose mark has not been abandoned and 
who, prior to such filing— 
"(1) has used the mark; 
"(2) has filed an application to roister the mark which is 
pending or has resulted in r^istration of the mark; or 
"(3) has filed a foreign application to r^^ister the mark on the 
basis of which he or she has acquired a right of priority, and 
timely files an application under section 44(d) to roister the 
mark which is pending or has resulted in r^istration of the 
mark."; 
(4) in subsection (d), as redesignated by paragraph (2) of this 
section, by striking out "fee herein provided" and inserting in 
Ueu thereof "presonbed fee"; 
(5) in subsection (f), as redesignated by paragraph (2) of this 
section, by striking out "fee required by law" and inserting in 
lieu thereof "prescribed fee"; and 
(6) in subsection (h), as redesignated by paragraph (2) of this 
section, by striking out "required fee" and inserting in lieu 
thereof "prescribed fee". 
SEC. 110. DURATION OF REGISTRATION. 
Section 8(a) (15 U.S.C. 1058(a)) is amended— 
(1) by striking out "twenty" and inserting in lieu thereof 
"ten"; and 
(2) by striking out "showing that said mark is in use in 
commerce or showing that its" and inserting in lieu thereof 
"setting forth those goods or services recited in the r^istration 
on or in connection with which the mark is in use in commerce 
and attaching to the affidavit a specimen or facsimile showing 
current use of the mark, or showing that any". 
SEC 111. RENEWAL OF REGISTRATION. 
Section 9 (15 U 
JS.C. 1059) is amended— 
(1) in subsection (a) by striking out "twenty" and inserting in 
lieu thereof "ten"; and 
(2) in subsection (c) by striking out "1(d) hereof and inserting 
in lieu thereof "1(e) of this Act". 
SEC 112. ASSIGNMENT. 
Section 10 (15 U.S.C. 1060) is amended— 
(1) in the first sentence by striking out "and in any such 
assignment" and inserting in lieu thereof the following: ". 
However, no application to roister a mark under section 1(b) 
shall be assignable prior to the filing of the verified statement of 
use under section 1(d), except to a successor to the business of 
the applicant, or portion thereof, to which the mark pertaii^, if 
that business is ongoing and existing. In any as^gnment au-
thorized by this section"; and 
(2) in the last paragraph by striking out "1(d) hereof and 
inserting in lieu thereof "1(e) of this Act". 
102 STAT. 3940 
PUBLIC LAW 100-667—NOV. 16, 1988 
SEC 113. EXAMINATION OF APPLICATION. 
Section 12(a) (15 U.S.C. 1062(a)) is amended— 
(1) by sti-iking out "fee herein provided" and inserting in lieu 
thereof "prescrSjed fee"; and 
(2) by striking out "to r^istration, the" and inserting in lieu 
thereof "to r^stration, or would be entitled to r^^ration 
upon the acceptance of tiie statement of use required by section 
1(d) ofthis Act, the". 
SEC. 114. OPPOSITION TO MARKS. 
Section 13 (15 U.S.C. 1063) is amended— 
(1) by inserting "(a)" before "Anv person"; 
(2) by striking out "required fee' and inserting in lieu thereof 
"prescribed fee ; and 
(3) by adding at the end thereof the following: 
"(b) Unless registration is successfully opposed— 
"(1) a mark entitled to r^istration on the principal roister 
based on an application filed under section 1(a) or pursuant to 
section 44 shall be roistered in the Patent and Trademark 
Office, a certificate of registration shall be issued, and notice of 
the r^istration shall be published in the Official Gazette of the 
Patent and Trademark Office; or 
"(2) a notice of allowance shall be issued to the applicant if 
the applicant applied for r^istration under section 1(b).". 
SEC. 115. CANCELLATION OF REGISTRATIONS. 
Section 14 (15 U.S.C. 1064) is amended— 
(1) in the matter preceding subsection (a)— 
(A) by inserting "as follows" after "be filed"; and 
(B) by striking out "1905-" and inserting in lieu thereof 
"1905:''; 
(2) in subsection (a)— 
(A) by striking out "(a) within" and inserting in lieu 
thereof "(1) Within"; and 
(B) by striking out "; or" and inserting in lieu thereof a 
period; 
(3) in subsection (b)— 
(A) by striking out "(b) within" and inserting in lieu 
thereof "(2) Within"; and 
(B) by striking out "; or" and inserting in lieu thereof a 
period; 
(4) by amending subsection (c) to read as follows: 
"(3) At any time if the roistered mark becomes the generic 
name for the goods or services, or a portion thereof, for which it 
is registered, or has been abandoned, or its r^istration was 
obtained fraudulently or contrary to the provisions of section 4 
or of subsection (a), (b), or (c) of section 2 for a r^istration under 
this Act, or contrary to similar prohibitory provisions of such 
prior Acts for a r^istration under such Acts, or if the registered 
mark is being used by, or with the permission of, the r^istrant 
so as to misrepresent the source of the goods or services on or in 
connection with which the mark is used. If the registered mark 
becomes the generic name for less than all of the goods or 
services for which it is roistered, a petition to cancel the 
r^istration for only those goods or services may be filed. A 
roistered mark shall not be deemed to be the generic name of 
goods or services solely because such mark is also used as a 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3941 
name of or to identify a unique product or service. The primary 
significance of the registered mark to the relevant public rather 
than purchaser motivation shall be the test for determining 
whether the roistered mark has become the generic name of 
goods or services on or in connection with wUch it has been 
used."; 
(5) in subsection (d)— 
(A) by striking out "(d) at" and inserting in lieu thereof 
"(4) At*'; and 
(B) by striking out "; or" and inserting in lieu thereof a 
period; 
(6) in subsection (e)— 
(A) by striking out "(e) at" and inserting in lieu thereof 
"(5) At'*; and 
(B) by striking out "(1)", "(2)", "(3)", and "(4)" and insert-
ing in Ueu thereof "(A)", "(B)", "(C)", and "(D)", respec-
tively; and 
(7) in the proviso at the end of the section by striking out 
"subsections (c) and (e)" and inserting in lieu thereof "para-
graphs (3) and (5)". 
SBC 116. INCONTESTABILITY OF RIGHT TO USE MARK. 
Section 15 (15 U.S.C. 1065) is amended— 
(1) by striking out "subsections (c) and (e)" and inserting in 
lieu thereof "paragraphs (3) and (5)"; 
(2) in para^graph (3) by striking out "subsections (1) and (2) 
hereof and inserting in lieu thereof "paragraphs (1) and (2) of 
this section"; and 
(3) in paragraph (4) by striking out "the common descriptive 
name of any article or substance, patented or otherwise" and 
inserting in lieu thereof "tiie generic name for the goods or 
services or a portion thereof, for which it is r^pstered". 
SEa 117. INTERFERENCE. 
Section 16 (15 U.S.C. 1066) is amended by striking out "applied to 
the goods or when used in connection with the services" and insert-
ing in lieu thereof "used on or in connection with the goods or 
services". 
SEC 118. ACnON OF COMMISSIONER IN PROCEEDINGS. 
Section 18 (15 \JJS.C. 1068) is amended— 
(1) by striking out "or restrict" and inserting in lieu thereof 
"the r^istration, in whole or in part, may modify the applica-
tion or r^istration by limiting the goods or services specified 
therein, may otherwise restrict or rectify with respect to the 
roister"; 
(2) by striking out "or may refuse" and inserting in lieu 
thereof "may refuse"; and 
(3) adding at the end thereof the following: "However, no final 
judgment shall be entered in favor of an applicant under section 
1(b) before the mark is roistered, if such applicant cannot 
prevail without establishing constructive use pursuant to sec-
tion 7(c).". 
SEC 119. APPLICATION OF EQUITABLE PRINCIPLES. 
Section 19 (15 UJS.C. 1069) is amended by striking out the second 
sentence. 
102 STAT. 3942 
PUBLIC LAW 100-667—NOV. 16, 1988 
SEC. 120. APPEALS. 
Section 21 (15 U.S.C. 1071) is amended— 
(1) in subsection (aXl)— 
(A) by striking out "section 21(b) hereof each place it 
appears and inserting in lieu thereof "subsection (b) of this 
section"; 
(B) by striking out "section 21(aK2) hereof and inserting 
in heu thereof "paragraph (2) of this subsection"; and 
(C) by striking out "said section 21(b)" and inserting in 
lieu thereof "subsection (b) of this section"; 
(2) in subsection (aX4), by adding at the end thereof the 
following: "However, no final judgment shall be entered in 
favor of an appUcant under section 1(b) before the mark is 
roistered, if such applicant cannot prevail without establishing 
constructive use pursuant to section 7(c)."; 
(3) in subsection (bXl)— 
(A) by striking out "section 21(a) hereof and inserting in 
lieu thereof "subsection (a) of this section"; 
(B) by striking out "section 21(a)" and inserting in lieu 
thereof "subsection (a) of this section"; and 
(C) by adding at the end thereof the following: "However, 
no final judgment shall be entered in favor of an applicsmt 
under section 1(b) before the mark is roistered, i£ such 
appUcant cannot prevail without establishing constructive 
use pursuant to section 7(c)."; and 
(4) in subsection (bX3), by striking out "(3)" and all that 
follows through the end of the first sentence and inserting in 
lieu thereof the following: 
"(3) In any case where there is no adverse party, a copy of the 
complaint shall be served on the O)mmissioner, and, unless the 
court finds the expenses to be unreasonable, all the expenses of the 
proceeding shall he paid by the party bringing the case, whether the 
final decision is in favor of such party or not.'. 
SEC. 121. SUPPLEMENTAL REGISTER 
Section 23 (15 U.S.C. 1091) is amended— 
(1) by inserting "(a)" before "In addition" in the first 
paragraph; 
(2) by inserting "(b)" before "Upon the" in the second 
paragraph; 
(3) by inserting "(c)" before "For the purposes" in the third 
paragraph; 
(4) in subsection (a), as designated by paragraph (1) of this 
section— 
(A) by striking out "paragraphs (a)," and inserting in lieu 
thereof "subsections (a),"; 
(B) by strikii^ out "have been in lawful use in commerce 
by the proprietor thereof, upon" and inserting in lieu 
thereof 
are in lawful use in commerce by the owner 
thereof, on"; 
(C) by striking out "for the year preceding the filing of 
the application"; and 
(D) by inserting before "section 1" the following: "subsec-
tions (a) and (e) of"; 
(5) in subsection O
i
>
)
, as designated by paragraph (2) of this 
section, by strikii^ out "fee herein provided" and inserting in 
lieu thereof "prescribed fee"; and 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3943 
(6) by striking out the last paragraph. 
SEC. 122. CANCELLATION ON SUPPLEMENTAL REGISTER 
Section 24 (15 U.S.C. 1092) is amended— 
(1) by striking out "verified" in the second sentence; 
(2) by striking out "was not entitled to register the mark at 
the time of his application for registration thereof," and insert-
ing in lieu thereof "is not entitled to registration,"; 
(3) by striking out "is not used by the registrant or"; and 
(4) by adding at the end thereof the following: "However, no 
final judgment shall be entered in favor of an applicant under 
section 1(b) before the mark is registered, if such applicant 
cannot prevail without establishing constructive use pursuant 
to section 7(c).". 
SEC. 123. PROVISIONS OF ACT APPLICABLE TO SUPPLEMENTAL REGISTER 
Section 26 (15 U.S.C. 1094) is amended— 
(1) by inserting "1(b)," after "sections"; and 
(2) by inserting "7(c)," after "7(b)". 
SEC. 124. REGISTRATION ON PRINCIPAL REGISTER NOT PRECLUDED. 
Section 27 (15 U.S.C. 1095) is amended by adding at the end 
thereof the following: "Registration of a mark on the supplemental 
register shall not constitute an admission that the mark has not 
acquired distinctiveness.". 
SEC. 125. NOTICE OF REGISTRATION. 
Section 29 (15 U.S.C. 1111) is amended by striking out "as used". 
SEC. 126. CLASSIFICATION OF GOODS AND SERVICES. 
Section 30 (15 U.S.C. 1112) is amended— 
(1) by inserting "or registrant's" after "applicant's"; 
(2) by striking out "may file an application" and inserting in 
lieu thereof "may apply"; 
(3) by striking out "goods and services upon or in connection 
with which he is actually using the mark:" and inserting in lieu 
thereof "goods or services on or in connection with which he or 
she is using or has a bona fide intention to use the mark in 
commerce:'; and 
(4) by amending the proviso to read £is follows: "Provided, 
That if the Commissioner by regulation permits the filing of an 
application for the registration of a mark for goods or services 
which fall within a plurality of classes, a fee equaling the sum of 
the fees for filing an application in each cleiss shall be paid, and 
the Commissioner may issue a single certificate of registration 
for such mark.". 
SEC. 127. INNOCENT INFRINGEMENT AND VIOLATIONS OF SECTION 43(a). 
Section 32(2) (15 U.S.C. 1114(2)) is amended to read as follows: 
"(2) Notwithstanding any other provision of this Act, the remedies 
given to the owner of a right infringed under this Act or to a person 
bringing an action under section 43(a) shall be limited as follows: 
"(A) Where an infringer or violator is engaged solely in the 
business of printing the mark or violating matter for others and 
establishes that he or she WEIS an innocent infringer or innocent 
violator, the owner of the right infringed or person bringing the 
action under section 43(a) shall be entitled as sigainst such 
102 STAT. 3944 
PUBLIC LAW 100-667—NOV. 16, 1988 
infringer or violator only to an injunction against future 
printing. 
"(B) Where the infringement or violation complained of is 
contained in or is part of paid advertising matter in a news-
paper, magazine, or other similar periodical or in an electronic 
communication as defined in section 2510(12) of title 18, United 
States Code, the remedies of the owner of the right infringed or 
person bringing the action under section 43(a) as against the 
publisher or distributor of such newspaper, magazine, or other 
similar periodical or electronic communication shall be limited 
to an injunction against the presentation of such advertising 
matter in future issues of such newspapers, magazines, or other 
similar periodicals or in future transmissions of such electronic 
communications. The limitations of this subparagraph shall 
apply only to innocent infringers and innocent violators. 
'(C) Injunctive relief shall not be available to the owner of the 
right infringed or person bringing the action under section 43(a) 
with respect to an issue of a newspaper, magazine, or other 
similar periodical or an electronic communication containing 
infringing matter or violating matter where restraining the 
dissemination of such infringing matter or violating matter in 
any particular issue of such periodical or in an electronic 
communication would delay the delivery of such issue or trans-
mission of such electronic communication after the regular time 
for such delivery or transmission, and such delay would be due 
to the method by which publication and distribution of such 
periodical or transmission of such electronic communication is 
customarily conducted in accordance with sound business prac-
tice, and not due to any method or device adopted to evade this 
section or to prevent or delay the issuance of an injunction or 
restraining order with respect to such infringing matter or 
violating matter. 
"(D) As used in this paragraph— 
"(i) the term Violator' means a person who violates sec-
tion 43(a); and 
"(ii) the term Violating matter' means matter that is the 
subject of a violation under section 43(a).". 
SEC. 128. REMEDIES. 
(a) PRIMA FACIE EVIDENCE OF EXCLUSIVE RIGHT TO USE MARK.— 
Section 33(a) (15 U.S.C. 1115(a)) is amended— 
(1) by inserting "the validity of the registered mark and of the 
registration of the mark, of the registrant's ownership of the 
mark, and of the" after "prima facie evidence of; 
(2) by inserting "or in connection with" after "in commerce 
on ; 
* 
(3) by striking out "an opposing party" and inserting in lieu 
thereof "another person"; and 
(4) by inserting ", including those set forth in subsection Ot>)," 
after "or defect". 
(b) CONCLUSIVE EVIDENCE OF EXCLUSIVE RIGHT TO USE MARK.— 
Section 33(b) (15 U.S.C. 1115(b)) is amended— 
(1) in subsection (b) by amending the matter before paragraph 
(1) to read as follows: 
"Ob) To the extent that the right to use the registered mark has 
become incontestable under section 15, the registration shall be 
conclusive evidence of the validity of the registered mark and of the 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3945 
registration of the mark, of the registrant's ownership of the mark, 
and of the registrant's exclusive right to use the registered mark in 
commerce. Such conclusive evidence shall relate to the exclusive 
right to use the mark on or in connection with the goods or services 
specified in the affidavit filed under the provisions of section 15, or 
in the renewal application filed under the provisions of section 9 if 
the goods or services specified in the renewal are fewer in number, 
subject to any conditions or limitations in the registration or in such 
affidavit or renewal application. Such conclusive evidence of the 
right to use the registered mark shall be subject to proof of infringe-
ment as defined in section 32, and shall be subject to the following 
defenses or defects:"; 
(2) in paragraph (3) by inserting "on or" after "goods or 
services"; 
(3) in paragraph (4)— 
(A) by striking out "trade or service"; and 
(B) by striking out "to users"; 
(4) in paragraph (5) by striking out "registration of the mark 
under this Act or" and inserting in lieu thereof "(A) the date of 
constructive use of the mark established pursuant to section 
7(c), (B) the registration of the mark under this Act if the 
application for registration is filed before the effective date of 
the Trademark Law Revision Act of 1988, or (C)"; 
(5) in paragraph (7) by striking out the period and inserting in 
lieu thereof "; or"; and 
(6) by adding at the end of the subsection the following: 
"(8) That equitable principles, including laches, estoppel, arid 
acquiescence, are applicable.". 
(c) INJUNCTIONS.—Section 34(a) (15 U.S.C. 1116(a)) is amended in 
the first sentence by inserting "or to prevent a violation under 
section 43(a)" after "Office". 
(d) NOTICE OF SUIT TO COMMISSIONER.—Section 34(c) (15 U.S.C. 
1116(c)) is amended— 
(1) by striking out "proceeding arising" and inserting in lieu 
thereof "proceeding involving a mark registered"; and 
(2) by striking out "decision is rendered, appeal taken or a 
decree issued" and inserting in lieu thereof "judgment is en-
tered or an appeal is taken". 
(e) CIVIL ACTIONS ARISING FROM USE OF COUNTERFEIT MARKS.— 
Section 34(dXlXB) (15 U.S.C. 1116(dXlXB)) is amended by inserting 
"on or" after "designation used". 
SEC. 129. RECOVERY FOR VIOLATION OF RIGHTS. 
Section 35(a) (15 U.S.C. 1117(a)) is amended in the first sentence by 
inserting ", or a violation under section 43(a)," after "Office". 
SEC. 130. DESTRUCTION OF INFRINGING ARTICLES. 
Section 36 (15 U.S.C. 1118) is amended in the first sentence— 
(1) by inserting ", or a violation under section 43(a)," after 
"Office"; and 
(2) by inserting after "registered mark" the following: "or, in 
the case of a violation of section 43(a), the word, term, name, 
s3anbol, device, combination thereof, designation, description, or 
representation that is the subject of the violation,". 
102 STAT. 3946 
PUBLIC LAW 100-667—NOV. 16, 1988 
SEC. 131. JURISDICTION. 
(a) 
JURISDICTION OF COURTS.—Section 39 
(15 U.S.C. 1121) 
is 
amended by inserting "(a)" after "SEC. 39.". 
(b) CERTAIN ACTIONS BY STATES PRECLUDED.—Section 39a 
(15 
U.S.C. 1121a) is amended— 
15 use 1121a, 
(1) by striking out "SEC. 39a." and inserting in lieu thereof 
1121- 
"(b)"; and 
(2) by striking out "servicemarks" each place it appears and 
inserting in lieu thereof "service marks". 
SEC. 132. UNREGISTERED MARKS, DESCRIPTIONS, AND REPRESENTA-
TIONS. 
Section 43(a) (15 U.S.C. 1125(a)) is amended to read as follows: 
"(a) Any person who, on or in connection with any goods or 
services, or any container for goods, uses in commerce any word, 
term, name, symbol, or device, or any combination thereof, or any 
false designation of origin, false or misleading description of fact, or 
false or misleading representation of fact, which— 
"(1) 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, or 
"(2) in commercial advertising or promotion, misrepresents 
the nature, characteristics, Qualities, or geographic origin of his 
or her or another persons goods, services, or commercial 
activities, 
shall be liable in a civil action by any person who believes that he or 
she is or is likely to be damaged by such act.". 
SEC. 133. INTERNATIONAL MATTERS. 
Section 44 (15 U.S.C. 1126) is amended— 
(1) in subsections (c), (d), (D, (g), and (h) by striking out 
"paragraph (b)" each place it appears and inserting in lieu 
thereof "subsection (b)"; 
(2) in subsection (a) by striking out "herein prescribed" and 
inserting in lieu thereof "required in this Act"; 
(3) in subsection (d) by striking out "sections 1, 2, 3, 4, or 23" 
and inserting in lieu thereof "section 1, 3, 4, 23, or 44(e)"; 
(4) in subsection (dX2) by striking out "but use in commerce 
need not be alleged" and inserting in lieu thereof "including a 
statement that the applicant has a bona fide intention to use 
the mark in commerce'; 
(5) in subsection (dX3) by striking out "foreing" and inserting 
in lieu thereof "foreign"; 
(6) in subsection (e) by adding at the end thereof the following: 
"The application must state the applicant's bona fide intention 
to use the mark in commerce, but use in commerce shall not be 
required prior to registration."; 
(7) in subsection (f) by striking out "paragraphs (c), (d)," and 
inserting in lieu thereof "subsections (c), (d),'; and 
(8) in subsection (i) by striking out "paragraph (b) hereof and 
inserting in lieu thereof "subsection (b) of this section". 
SEC. 134. CONSTRUCTION AND DEFINITIONS. 
Section 45 (15 U.S.C. 1127) is amended— 
-" '•'ff*lJ' 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3947 
(1) by amending the paragraph defining "related company" to 
read as follows: 
"The term 'related company' means any person whose use of a 
mark is controlled by the owner of the mark with respect to the 
nature and quality of the goods or services on or in connection with 
wbicdi the mark is used."; 
(2) by amending tiie paragraph defining "trade name" and 
"commercial name" to read as follows: 
"The terms 'trade name' and 'commercial name' mean any name 
used by a person to identify his or her business or vocation."; 
(3) by amending the paragraph defining "trademark" to read 
as follows: 
"Hie term 'trademark' includes any word, name, symbol, or 
device, or any combination thereof— 
"(1) used by a person, or 
"(2) which a person has a bona fide intention to use in 
commerce and applies to roister on the principal r^^ter 
established by this Act, 
to identify and distinguish his or her goods, including a unique 
product, from those manufactured or sold by others and to indicate 
the source of the goods, even if that source is unknown."; 
(4) by amending the paragraph defining "service mark" to 
read as follows: 
"The term 'service mark' means any word, name, symbol, or 
device, or any combination thereof— 
"(1) used by a person, or 
"(2) which a person has a bona fide intention to use in 
commerce and applies to roister on the principal roister 
established by this Act, 
to identify and distinguish the services of one person, including a 
unique service, horn the services of others and to indicate the source 
of the services, even if that source is unknoMm. Titles, character 
names, and other distinctive features of radio or television pn^rams 
may be roistered as service marks notwithstanding that they, or 
the programs, may advertise the goods of the sponsor.'; 
(5) by amending the paragraph defining "certification mark" 
to read as follows: 
"The term 'certification mark' means any word, name, symbol, or 
device, or any combination thereof— 
"(1) used by a person other than its owner, or 
"(2) which its owner has a bona fide intention to permit a 
person other than the owner to use in commerce and files an 
application to roister on the principal roister established by 
this Act, 
to certify r^onal or other origin, material, mode of manufacture, 
quality, accuracy, or other characteristics of such person's goods or 
services or tbat the work or labor on the goods or services was 
performed by members of a union or other organization."; 
(6) by amending the paragraph defining "collective mark" to 
read as follows: 
"The term 'collective mark' means a trademark or service mark— 
"(1) used by the members of a cooperative, an i^sociation, or 
other collective group or oiganization, or 
"(2) which such cooperative, asKxnation, or other collective 
group or organization has a bona fide intention to use in 
commerce and applies to roister on the principal roister 
established by this Act, 
102 STAT. 3948 
PUBLIC LAW 100-667—NOV. 16, 1988 
and includes marks indicating membership in a union, an associa-
tion, or other organization."; 
(7) by amending the paragraph defining "mark" to read as 
follows: 
"The term 'mark' includes any trademark, service mark, collec-
tive mark, or certification mark."; 
(8) by amending the matter which appears between the para-
graph defining "mark", and the paragraph defining "colorable 
imitation" to read as follows: 
"The term 'use in commerce' means the bona fide use of a mark in 
the ordinary course of trade, and not made merely to reserve a right 
in a mark. For purposes of this Act, a mark shall be deemed to be in 
use in commerce— 
"(1) on goods when— 
"(A) it is placed in any manner on the goods or their 
containers or the displays associated therewith or on the 
tags or labels affixed thereto, or if the nature of the goods 
makes such placement impracticable, then on documents 
associated with the goods or their sale, and 
"(B) the goods are sold or transported in commerce, and 
"(2) on services when it is used or displayed in the sale or 
advertising of services and the services are rendered in com-
merce, or the services are rendered in more than one State or in 
the United States and a foreign country and the person render-
ing the services is engaged in commerce in connection with the 
services. 
"A mark shall be deemed to be 'abandoned' when either of the 
following occurs: 
"(1) When its use has been discontinued with intent not to 
resume such use. Intent not to resume may be inferred from 
circumstances. Nonuse for two consecutive years shall be prima 
facie evidence of abandonment. 'Use' of a mark means the bona 
fide use of that mark made in the ordinary course of trade, and 
not made merely to reserve a right in a mark. 
"(2) When any course of conduct of the owner, including acts 
of omission as well as commission, causes the mark to become 
the generic name for the goods or services on or in connection 
with which it is used or otherwise to lose its significance as a 
mark. Purchaser motivation shall not be a test for determining 
abandonment under this paragraph.". 
SEC. 135. PENDING APPLICATIONS. 
The Trademark Act of 1946 is amended by adding at the end 
thereof the following: 
15 use 1058 
"SEC. 51. All certificates of registration based upon applications 
for registration pending in the Patent and Trademark Office on the 
effective date of the Trademark Law Revision Act of 1988 shall 
remain in force for a period of 10 years.". 
15 use 1051 
SEC. 136. EFFECTIVE DATE. 
This title and the amendments made by this title shall become 
effective on the date which is one year after the date of enactment of 
this Act. 
note. 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3949 
TITLE II—SATELLITE HOME VIEWER ACT ^Sr A
?
t
T
f
' 
, 
1988. 
SEC. 201. SHORT TITLE. 
Communications 
and telecom-
This title may be cited as the "Satellite Home Viewer Act of munications. 
1988". 
17 use 101 note. 
SEC. 202. AMENDMENTS TO TITLE 17, UNITED STATES CODE. 
Title 17, United States Code, is amended as follows: 
(1) Section 111 of title 17, United States Code, is amended— 
(A) in subsection (a)— 
(i) in paragraph (3) by striking "or" at the end; 
(ii) by redesignating paragraph (4) as paragraph (5); 
and 
(iii) by inserting the following after paragraph (3): 
"(4) the secondary transmission is made by a satellite carrier 
for private home viewing pursuant to a statutory license under 
section 119; or"; and 
(B) in subsection (dXlXA) by inserting before "Such state-
ment" the following: 
"In determining the total number of subscribers and the 
gross amounts paid to the cable system for the basic service 
of providing secondary transmissions of primary broadcast 
transmitters, the system shall not include subscribers and 
amounts collected from subscribers receiving secondary 
transmissions for private home viewing pursuant to section 
119.". 
(2) Chapter 1 of title 17, United States Code, is amended by 
adding at the end the following new section: 
"§ 119. Limitations on exclusive rights: Secondary transmissions of 
superstations and network stations for private home 
viewing 
"(a) SECONDARY TRANSMISSIONS BY SATELLITE CARRIERS.— 
"(1) SUPERSTATIONS.—Subject to the provisions of paragraphs 
(3), (4), and (6) of this subsection, secondary transmissions of a 
primary transmission made by a superstation and embod3ring a 
performsince or display of a work shall be subject to statutory 
licensing under this section if the secondary transmission is 
made by a satellite carrier to the public for private home 
viewing, and the carrier makes a direct or indirect charge for 
each retransmission service to each household receiving the 
secondary transmission or to a distributor that has contracted 
with the carrier for direct or indirect delivery of the secondary 
transmission to the public for private home viewing. 
"(2) NETWORK STATIONS.— 
"(A) IN GENERAL.—Subject to the provisions of subpara-
graphs (B) and (C) of this paragraph and par£^aphs (3), (4), 
(5), and (6) of this subsection, secondary transmissions of 
programming contained in a primary transmission made by 
a network station and embodying a performance or display 
of a work shall be subject to statutory licensing under this 
section if the secondary transmission is made by a satellite 
carrier to the public for private home viewing, and the 
carrier makes a direct or indirect charge for such 
retransmission service to each subscriber receiving the 
secondary transmission. 
102 STAT. 3950 
PUBLIC LAW 100-667—NOV. 16, 1988 
Public 
information. 
"(B) SECONDARY TRANSMISSIONS TO UNSERVED HOUSE-
HOLDS.—^The statutory license provided for in subparagraph 
(A) shall be limited to secondary transmissions to persons 
who reside in unserved households. 
*\C) SUBMISSION OF SUBSCRIBER LISTS TO NETWORKS.—A 
satellite carrier that makes secondary transmissions of a 
primary transmission made by a network station pursuant 
to subparagraph (A) shall, 90 days after the effective date of 
the Satellite Home Viewer Act of 1988, or 90 days after 
commencing such secondary transmissions, whichever is 
later, submit to the network that owns or is affiliated with 
the network station a list identifying (by street address, 
including county and zip code) all subscribers to which the 
satellite carrier currently makes secondary transmissions 
of that primary transmission. Thereafter, on the 15th of 
each month, the satellite carrier shall submit to the net-
work a list identifying (by street address, including county 
and zip code) any persons who have been added or dropped 
as such subscribers since the last submission under this 
subparagraph. Such subscriber information submitted by a 
satellite carrier may be used only for purposes of monitor-
ing compliance by the satellite carrier with this subsection. 
The submission requirements of this subparagraph shall 
apply to a satellite carrier only if the network to whom the 
submissions are to be made places on file with the Roister 
of Copyrights, on or after the effective date of the Satellite 
Home Viewer Act of 1988, a document identifying the name 
and address of the person to whom such submissions are to 
be made. The Roister shsdl maintain for public inspection 
a file of all such documents. 
"(3) NONCOSfPLIANCE WITH R
E
P
O
R
T
I
N
G AND P
A
Y
M
E
N
T REQUIRE-
MENTS.—Notwithstanding the provisions of paragrapl^ (1) and 
(2), the willful or repeated secondary transmission to the public 
by a satellite carrier of a primary transmission made by a 
superstation or a network station and embodying a performance 
or display of a work is actionable as an act of infringement 
under section 501, and is fully subject to the remedies provided 
by sections 502 through 506 and 509, where the satellite carrier 
has not deposited the statement of account and royalty fee 
required by subsection (b), or has failed to make the submissions 
to networks required by paragraph (2XC). 
"(4) WILLFUL ALTERATIONS.—^Notwithstanding the provisions 
of paragraphs (1) and (2), the secondary transmission to the 
public by a satellite carrier of a primary transmission made by 
a superstation or a network station and embodying a perform-
ance or display of a work is actionable as an act of infringement 
under section 501, and is fully subject to the remedies provided 
by sections 502 through 506 and sections 509 and 510, if the 
content of the particuku* program in which the performance or 
display is embodied, or any commercial advertising or station 
announcement transmitted by the primaiy transmitter during, 
or inunediately before or after, the transmission of such pro-
gram, is in any way willfully altered by the satellite carrier 
through changes, deletions, or additions, or is combined with 
programming from any other broadcast signal. 
"(5) VIOLATION OF TERRITORIAL RESTRICTIONS ON STATUTORY 
LICENSE FOR NETWORK STATIONS.— 
•-?x 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3951 
"(A) INDIVIDUAL VIOLATIONS.—The willful or repeated 
secondary transmission by a satellite carrier of a primary 
transmission made by a network station and embodying a 
performance or display of a work to a subscriber who does 
not reside in an unserved household is actionable as an act 
of infringement under section 501 and is fully subject to the 
remedies provided by sections 502 through 506 and 509, 
except that— 
"(i) no damages shall be awarded for such act of 
infringement if the satellite carrier took corrective 
action by promptly withdrawing service from the ineli-
gible subscriber, and 
"(ii) any statutory damages shall not exceed $5 for 
such subscriber for each month during which the viola-
tion occurred. 
"(B) PATTERN OF VIOLATIONS.—If a satellite carrier 
engages in a willful or repeated pattern or practice of 
delivering a primary transmission made by a network sta-
tion and embodjring a performance or display of a work to 
subscribers who do not reside in unserved households, then 
in addition to the remedies set forth in subparagraph (A)— 
"(i) if the pattern or practice has been carried out on 
a substantially nationwide basis, the court shall order a 
permanent injunction barring the secondary trans-
mission by the satellite carrier, for private home view-
ing, of the primary transmissions of any primary 
network station affiliated with the same network, and 
the court may order statutory damages of not to exceed 
$250,000 for each 6-month period during which the 
pattern or practice was carried out; and 
"(ii) if the pattern or practice has been carried out on 
a local or regional basis, the court shall order a perma-
nent injunction barring the secondary transmission, for 
private home viewing in that locality or region, by the 
satellite carrier of the primary transmissions of any 
primary network station affiliated with the same net-
work, and the court may order statutory damages of 
not to exceed $250,000 for each 6-month period during 
which the pattern or practice was carried out. 
"(C) 
PREVIOUS SUBSCRIBERS EXCLUDED.—Subparagraphs 
(A) and (B) do not apply to secondary transmissions by a 
satellite carrier to persons who subscribed to receive such 
secondary transmissions from the satellite carrier or a 
distributor before the date of the enactment of the Satellite 
Home Viewer Act of 1988. 
"(6) DISCRIMINATION BY A SATELUTE CARRIER.—Notwithstand-
ing the provisions of paragraph (1), the willful or repeated 
secondary transmission to the public by a satellite carrier of a 
primary transmission made by a superstation or a network 
station and embodjdng a performance or display of a work is 
actionable as an act of infringement under section 501, and is 
fully subject to the remedies provided by sections 502 through 
506 and 509, if the satellite carrier unlawfully discriminates 
against a distributor. 
"(7) GEOGRAPHIC UMFTATION ON SECONDARY TRANSMISSIONS.— 
The statutory license created by this section shall apply only to 
102 STAT. 3952 
PUBLIC LAW 100-667—NOV. 16, 1988 
secondary transmissions to households located in the United 
States. 
"(b) STATUTORY LICENSE FOR SECONDARY TRANSMISSIONS FOR PRI-
VATE HOME VIEWING.— 
Regulations. 
"(1) DEPOSITS WITH THE REGISTER OF COPYRIGHTS.—A Satellite 
carrier whose secondary transmissions are subject to statutory 
licensing under subsection (a) shall, on a semiannual basis, 
deposit with the Register of Copyrights, in accordance with 
requirements that the Register shall, after consultation with 
the Copyright Royalty Tribunal, prescribe by regulation— 
'(A) a statement of account, covering the preceding 
6-month period, specifying the names and locations of all 
superstations and network stations whose signals were 
transmitted, at any time during that period, to subscribers 
for private home viewing as described in subsections (aXD 
and (aX2), the total number of subscribers that received 
such transmissions, and such other data as the Register of 
Copyrights may, after consultation with the Copyright Roy-
alty Tribunal, from time to time prescribe by regulation; 
and 
"(B) a royalty fee for that 6-month period, computed by— 
"(i) multiplying the total number of subscribers 
receiving 
each 
secondary 
transmission 
of 
a 
superstation during each calendar month by 12 cents; 
'(ii) multiplying the number of subscribers receiving 
each secondary transmission of a network station 
during each calendar month by 3 cents; and 
"(iii) adding together the totals computed under 
clauses (i) and (ii). 
"(2) INVESTMENT OF FEES.—The Register of Copyrights shall 
receive all fees deposited under this section and, after deducting 
the reasonable costs incurred by the Copyright Office under this 
section (other than the costs deducted under paragraph (4)), 
shall deposit the balance in the Treasury of the United States, 
in such manner as the Secretary of the Treasury directs. All 
funds held by the Secretary of the Treasury shall be invested in 
interest-bearing securities of the United States for later dis-
tribution with interest by the Copjo-ight Royalty Tribunal as 
provided by this title. 
"(3) PERSONS TO WHOM FEES ARE DISTRIBUTED.—The royalty 
fees deposited under paragraph (2) shall, in accordance with the 
procedures provided by paragraph (4), be distributed to those 
cop5rright owners whose works were included in a secondary 
transmission for private home viewing made by a satellite 
carrier during the applicable 6-month accounting period and 
who file a claim with the Copyright Royalty Tribunal under 
paragraph (4). 
"(4) PROCEDURES FOR DISTRIBUTION.—The royalty fees depos-
ited under paragraph (2) shall be distributed in accordance with 
the following procedures: 
Regulations. 
"(A) FiUNG OF CLAIMS FOR FEES.—During the month of 
July in each year, each person claiming to be entitled to 
statutory license fees for secondary transmissions for pri-
vate home viewing shall file a claim with the Copyright 
Royalty Tribunal, in accordance with requirements that the 
Tribunal shall prescribe by regulation. For purposes of this 
paragraph, any claimants may agree among themselves as 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3953 
to the proportionate division of statutory license fees among 
them, may lump their claims together and file them jointly 
or as a single claim, or may designate a common agent to 
receive payment on their behalf. 
"(B) DETERMINATION OF CONTROVERSY; DISTRIBUTIONS.— 
After the first day of August of each year, the Copyright 
Royalty Tribunal shall determine whether there exists a 
controversy concerning the distribution of royalty fees. If 
the Tribunal determines that no such controversy exists, 
the Tribunal shall, after deducting reasonable administra-
tive costs under this paragraph, distribute such fees to the 
copyright owners entitled to receive them, or to their des-
ignated agents. If the Tribunal finds the existence of a 
controversy, the Tribunal shall, pursuant to chapter 8 of 
this title, conduct a proceeding to determine the distribu-
tion of royalty fees. 
"(C) WITHHOLDING OF FEES DURING CONTROVERSY.—During 
the pendency of any proceeding under this subsection, the 
Copyright Royalty Tribunal shall withhold from distribu-
tion an amount sufficient to satisfy all claims with respect 
to which a controversy exists, but shall have discretion to 
proceed to distribute any amounts that are not in 
controversy. 
'(c) DETERMINATION OF ROYALTY FEES.— 
"(1) APPUCABIUTY AND DETERMINATION OF ROYALTY FEES.— 
The rate of the royalty fee payable under subsection (bXlXB) 
shall be effective until December 31,1992, unless a royalty fee is 
established under paragraph (2), (3), or (4) of this subsection. 
After that date, the fee shall be determined either in accordance 
with the voluntary negotiation procedure specified in paragraph 
(2) or in accordance with the compulsory arbitration procedure 
specified in paragraphs (3) and (4). 
"(2) FEE SET BY VOLUNTARY NEGOTIATION.— 
"(A) NOTICE OF INITIATION OF PROCEEDINGS.—On or before 
July 1, 1991, the Copyright Royalty Tribunal shall cause 
notice to be published in the Federal Register of the initi-
ation of voluntary negotiation proceedings for the purpose 
of determining the royalty fee to be paid by satellite car-
riers under subsection (bXlXB). 
"(B) NEGOTIATIONS.—Satellite carriers, distributors, and 
copyright owners entitled to royalty fees under this section 
shall negotiate in good faith in an effort to reach a 
voluntary agreement or voluntary agreements for the pay-
ment of royalty fees. Any such satellite carriers, distribu-
tors, and copyright owners may at any time negotiate and 
agree to the royalty fee, and may designate common agents 
to negotiate, agree to, or pay such fees. If the parties fail to 
identify common agents, the Copyright Royalty Tribunal 
shall do so, after requesting recommendations from the 
parties to the negotiation proceeding. The parties to each 
negotiation proceeding shsdl bear the entire cost thereof. 
"(C) AGREEMENTS BINDING ON PARTIES; FILING OF AGREE-
MENTS.—Voluntary agreements negotiated at any time in 
accordance with this paragraph shall be binding upon all 
satellite carriers, distributors, and cop3n'ight owners that 
are parties thereto. (Ilopies of such agreements shall be filed 
with the Copyright Office within 30 days after execution in 
Federal 
Register, 
publication. 
Regulations. 
102 STAT. 3954 
PUBLIC LAW 100-667—NOV. 16, 1988 
Federal 
Register, 
publication. 
accordance with regulations that the Register of Cop3rrights 
shall prescribe. 
"(D) PERIOD AGREEMENT IS IN EFFECT.—The obligation to 
pay the royalty fees established under a voluntary agree-
ment which has been filed with the Copyright Office in 
accordance with this paragraph shall become effective on 
the date specified in the agreement, and shall remain in 
effect until December 31,1994. 
'(3) FEE SET BY COMPULSORY ARBITRATION.— 
"(A) NOTICE OF INITIATION OF PROCEEDINGS.—On or before 
December 31, 1991, the Copyright Royalty Tribunal shall 
cause notice to be published in the Federal Register of the 
initiation of arbitration proceedings for the purpose of 
determining a reasonable royalty fee to be paid under 
subsection (b)(1)(B) by satellite carriers who are not parties 
to a voluntary agreement filed with the Copyright Office in 
accordance with paragraph (2). Such notice shall include 
the names and qualifications of potential arbitrators chosen 
by the Tribunal from a list of available arbitrators obtained 
from the American Arbitration Association or such similar 
organization as the Tribunal shall select. 
(B) SELECTION OF ARBITRATION PANEL.—Not later than 10 
days after publication of the notice initiating an arbitration 
proceeding, and in accordance with procedures to be speci-
fied by the Copyright Royalty Tribunal, one arbitrator shall 
be selected from the published list by copyright owners who 
claim to be entitled to royalty fees under subsection (b)(4) 
and who are not party to a voluntary agreement filed with 
the Copyright Office in accordance with paragraph (2), and 
one arbitrator shall be selected from the published list by 
satellite carriers and distributors who are not parties to 
such a voluntary agreement. The two arbitrators so selected 
shall, within 10 days after their selection, choose a third 
arbitrator from the same list, who shall serve as chair-
person of the arbitrators. If either group fail to agree upon 
the selection of an arbitrator, or if the arbitrators selected 
by such groups fail to agree upon the selection of a chair-
person, the Copyright Royalty Tribunal shall promptly 
select the arbitrator or chairperson, respectively. The ar-
bitrators selected under this subparagraph shall constitute 
an Arbitration Panel. 
"(C) ARBITRATION PROCEEDING.—The Arbitration Panel 
shall conduct an arbitration proceeding in accordance with 
such procedures as it may adopt. The Panel shall act on the 
basis of a fully documented written record. Any copyright 
owner who claims to be entitled to royalty fees under 
subsection Ot)X4), any satellite carrier, and any distributor, 
who is not party to a voluntary agreement filed with the 
Copyright Office in accordance with paragraph (2), may 
submit relevant information and proposals to the Panel. 
The parties to the proceeding shall bear the entire cost 
thereof in such manner and proportion as the Panel shall 
direct. 
"(D) FACTORS FOR DETERMINING ROYALTY FEES.—In deter-
mining royalty fees under this paragraph, the Arbitration 
Panel shall consider the approximate average cost to a 
cable system for the right to secondarily transmit to the 
- » 
- a ^ ^ 
f 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3955 
public a primary transmission made by a broadcast station, 
the fee established under any voluntary agreement filed 
with the Copyright Office in accordance with paragraph (2), 
and the last fee proposed by the parties, before proceedings 
under this paragraph, for the secondary transmission of 
superstations or network stations for private home viewing. 
The fee shall also be calculated to achieve the following 
objectives: 
"(i) To maximize the availability of creative works to 
the public. 
"(ii) To afford the copyright owner a fair return for 
his or her creative work and the copyright user a fair 
income under existing economic conditions. 
"(iii) To reflect the relative roles of the copyright 
owner and the copyright user in the product made 
available to the public with respect to relative creative 
contribution, technological contribution, capital invest-
ment, cost, risk, and contribution to the opening of new 
markets for creative expression and media for their 
communication. 
"(iv) To minimize any disruptive impact on the struc-
ture of the industries involved and on genersilly 
prevailing industry practices. 
"(E) REPORT TO COPYRIGHT ROYALTY TRIBUNAL.—Not later 
than 60 days after publication of the notice initiating an 
arbitration proceeding, the Arbitration Panel shall report 
to the Copyright Royalty Tribunal its determination 
concerning the royalty fee. Such report shall be accom-
panied by the written record, and shall set forth the facts 
that the Panel found relevant to its determination and the 
reasons why its determination is consistent with the cri-
teria set forth in subparagraph (D). 
"(F) ACTION BY COPYRIGHT ROYALTY TRIBUNAL.—Within 60 
days after receiving the report of the Arbitration Panel 
under subparagraph (E), the Copyright Royalty Tribunal 
shall adopt or reject the determination of the Panel. The 
Tribunal shall adopt the determination of the Panel unless 
the Tribunal finds that the determination is clearly 
inconsistent with the criteria set forth in subparagraph (D). 
If the Tribunal rejects the determination of the Panel, the 
Tribunal shall, before the end of that 60-day period, and 
after full examination of the record created in the arbitra-
tion proceeding, issue an order, consistent with the criteria 
set forth in subparagraph (D), setting the royalty fee under 
this paragraph. The Tribunal shall cause to be published in 
the Federal Register the determination of the Panel, and 
the decision of the Tribunal with respect to the determina-
tion (including any order issued under the preceding sen-
tence). The Tribunal shall also publicize such determination 
and decision in such other manner as the Tribunal consid-
ers appropriate. The Tribunal shall also make the report of 
the Arbitration Panel and the accompanying record avail-
able for public inspection and copying. 
"(G) PERIOD DURING WHICH DECISION OF PANEL OR ORDER 
OF TRIBUNAL EFFECTIVE.—The obligation to pay the royalty 
fee established under a determination of the Arbitration 
Panel which is confirmed by the Copyright Royalty Tribu-
Federal 
Register, 
publication. 
Public 
information. 
102 STAT. 3956 
PUBLIC LAW 100-667—NOV. 16, 1988 
nal in accordance with this paragraph, or established by 
any order issued under subparagraph (F), shall become 
effective on the date when the decision of the IVibunal is 
published in the Federal Roister under subparagraph (F), 
and shall remain in effect until modified in accordance with 
paragraph (4), or until December 31,1994. 
"(H) PERSONS SUBJECT TO ROYALTY FEE.—^The royalty fee 
adopted or ordered under subparagraph (F) shall be binding 
on all satellite carriers, distributors, and copyright owners, 
who are not party to a voluntary agreement filed with the 
Copyright Office under paragraph (2). 
"(4) JUDICIAL REVIEW.—^Any decision of the Copyright Royalty 
Tribunal under paragraph (3) with respect to a determination of 
the Arbitration Panel may be appealed, by any aggrieved party 
who would be bound by the determination, to the United Stated 
Court of Appeals for the District of Columbia Circuit, within 30 
days after tiie publication of the decision in the Federal Ro-
ister. The pendency of an appeal under this paragraph shall not 
relieve satellite carriers of the obligation under subsection (bXD 
to deposit the statement of account and royalty fees specific in 
that subsection. The court shall have jurisdiction to modify or 
vacate a decision of the Tribunal only if it finds, on the basis of 
the record before the Tribunal and the statutory criteria set 
forth in paragraph (3XD), that the Arbitration Panel or the 
Tribunal acted in an arbitrary manner. If the court modifies the 
decision of the Tribunal, the court shall have jurisdiction to 
enter its own determination with respect to royalty fees, to 
order the repayment of any excess fees deposited under suteec-
tion (bXlXB), and to order the payment of any underpaid fees, 
and the interest pertaining respectively thereto, in accordance 
with its final judgment. The court may further vacate the 
decision of the Tribunal and remand the case for arbitration 
proceedings in accordance with paragraph (3). 
"(d) DEFINITIONS.—^As used in this section— 
"(1) DISTRIBUTOR.—^The term 'distributor' means an entity 
which conlsiBCts to distribute secondary transmissions from a 
satellite carrier and, either as a single channel or in a package 
with other programming, provides the secondary transmission 
either directly to individual subscribers for private home view-
ing or indirectly through other program distribution entities. 
(2) NETWORK STATION.—^The term 'network station' has the 
meaning given that term in section 111(f) of this title, and 
includes any translator station or terrestrial satellite station 
that rebroadcasts all or substantially all of the programming 
broadcast by a network station. 
"(3) PRIMARY NETWORK STATION.—^The term 'primary network 
station' means a network station that broadcasts or rebroad-
casts the basic programming service of a particular national 
network. 
"(4) PRIMARY TRANSMISSION.—^The term 'primary trans-
mission' has the meaning given that term in section 111(f) of 
this title. 
"(5) PRIVATE HOME VIEWING.—The term 'private home view-
ing' means the viewing, for private use in a household by means 
of satelUte reception equipment which is operated by an individ-
ual in l ^ t household and which serves only such household, of 
a secondary transmission delivered by a satellite carrier of a 
'g'TfffgSr-a 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3957 
primary transmission of a television station licensed by the 
Federal Communications Commission. 
"(6) SATELLITE CARRIER.—The term 'satellite carrier' means 
an entity that uses the facilities of a satellite or satellite service 
licensed by the Federal Communications Commission, to estab-
lish and operate a channel of communications for point-to-
multipoint distribution of television station signals, and that 
owns or leases a capacity or service on a satellite in order to 
provide such point-to-multipoint distribution, except to the 
extent that such entity provides such distribution pursuant to 
tariff under the Communications Act of 1934, other than for 
private home viewing. 
"(7) SECONDARY TRANSMISSION.—The term 'secondary trans-
mission' has the meaning given that term in section 111(f) of 
this title. 
"(8) SUBSCRIBER.—The term 'subscriber' means an individual 
who receives a secondary transmission service for private home 
viewing by means of a secondary transmission from a satellite 
carrier and pays a fee for the service, directly or indirectly, to 
the satellite carrier or to a distributor. 
"(9) SUPERSTATION.—The term 'superstation'" means a tele-
vision broadcast station, other than a network station, licensed 
by the Federal Communications Commission that is secondarily 
transmitted by a satellite carrier. 
"(10) UNSERVED HOUSEHOLD.—The term 'unserved household', 
with respect to a particular television network, means a house-
hold that— 
"(A) cannot receive, through the use of a conventional 
outdoor rooftop receiving antenna, an over-the-air signal of 
grade B intensity (as defined by the Federal Communica-
tions Commission) of a primary network station affiliated 
with that network, and 
"(B) has not, within 90 days before the date on which that 
household subscribes, either initially or on renewed, to 
receive secondary transmissions by a satellite carrier of a 
network station affiliated with that network, subscribed to 
a cable system that provides the signal of a primary net-
work station affiliated with that network. 
"(e) EXCLUSIVITY OF THIS SECTION WITH RESPECT TO SECONDARY 
TRANSMISSIONS OF BROADCAST STATIONS BY SATELUTE TO MEMBERS OF 
THE PUBUC.—No provision of section 111 of this title or any other 
law (other than this section) shall be construed to contain any 
authorization, exemption, or license through which secondary trans-
missions by satellite carrier for private home viewing of program-
ming contained in a primary transmission made by a superstation 
or a network station may be made without obtaining the consent of 
the copjrright owner.". 
(3) Section 501 of title 17, United States Code, is amended by 
adding at the end the following: 
"(e) With respect to any secondary transmission that is made by a 
satellite carrier of a primary transmission embodying the perform-
ance or display of a work and is actionable as an act of infringement 
under section 119(aX5), a network station holding a cop)aight or 
other license to transmit or pnerform the same version of that work 
shall, for purposes of subsection Ot)) of this section, be treated as a 
legal or beneficial owner if such secondary transmission occurs 
within the local service area of that station.". 
102 STAT. 3958 
PUBLIC LAW 100-667—NOV. 16, 1988 
(4) Section 801(bX3) of title 17, United States Code, is amended 
by striking "and 116" and inserting ", 116, and 119(b)". 
(5) Section 804(d) of title 17, United States Code, is amended 
by striking "sections 111 or 116" and inserting "section 111, 116, 
or 119". 
(6) The table of sections at the beginning of chapter 1 of title 
17, United States Code, is amended by adding at the end the 
following new item: 
"119. Limitations on exclusive rights: Secondary transmissions of superstations and 
network stations for private home viewing.". 
SEC. 203. SYNDICATED EXCLUSIVITY; REPORT ON DISCRIMINATION. 
Title VII of The Communications Act of 1934 (47 U.S.C. 601 et seq.) 
is amended by adding at the end the following: 
"SYNDICATED EXCLUSIVITY 
47 use 612. 
"SEC. 712. (a) The Federal Communications Commission shall, 
within 120 days after the effective date of the Satellite Home Viewer 
Act of 1988, initiate a combined inquiry and rulemaking proceeding 
for the purpose of— 
"(1) determining the feasibility of imposing syndicated 
exclusivity rules with respect to the delivery of syndicated 
programming (as defined by the Commission) for private home 
viewing of secondary transmissions by satellite of broadcast 
station signals similar to the rules issued by the Commission 
with respect to syndicated exclusivity and cable television; and 
"(2) adopting such rules if the Commission considers the 
imposition of such rules to be feasible. 
"(b) In the event that the Commission adopts such rules, any 
willful and repeated secondary transmission made by a satellite 
carrier to the public of a primary transmission embodying the 
performance or display of a work which violates such Commission 
rules shall be subject to the remedies, sanctions, and penalties 
provided by title V and section 705 of this Act. 
"DISCRIMINATION 
47 use 613. 
"SEC. 713. The Federal Communications Commission shall, within 
1 year after the effective date of the Satellite Home Viewer Act of 
1988, prepare and submit to the Committee on Commerce, Science, 
and Transportation of the Senate and the Committee on Energy and 
Commerce of the House of Representatives a report on whether, and 
the extent to which, there exists discrimination described in section 
119(a)(6) of title 17, United States Code.". 
SEC. 204. INQUIRY ON ENCRYPTION STANDARD. 
Section 705 of the Communications Act of 1934 (47 U.S.C. 605) is 
amended by adding at the end thereof the following: 
"(f) Within 6 months after the date of enactment of the Satellite 
Home Viewer Act of 1988, the Federal Communications Commission 
shall initiate an inquiry concerning the need for a universal 
encryption standard that permits decryption of satellite cable 
programming intended for private viewing. In conducting such in-
quiry, the Commission shall take into account— 
"(1) consumer costs and benefits of any such standard, includ-
ing consumer investment in equipment in operation; 
crime. 
PUBLIC LAW 100-667—NOV. 16, 1988 
102 STAT. 3959 
"(2) incorporation of technological enhancements, including 
advanced television formats; 
"(3) whether any such standard would effectively prevent 
present and future unauthorized decryption of satellite cable 
programming; 
"(4) the costs and benefits of any such standard on other 
authorized users of encrjrpted satellite cable programming, 
including cable systems and satellite master antenna television 
systems; 
"(5) the effect of any such standard on competition in the 
manufacture of decryption equipment; and 
"(6) the impact of the time delay associated with the Commis-
sion procedures necessary for establishment of such standards. 
"(g) If the Commission finds, based on the information gathered 
from the inquiry required by subsection (f), that a universal 
encryption standard is necessary and in the public interest, the 
Commission shall initiate a rulemaking to establish such a 
standard.". 
SEC. 205. PIRACY OF SATELLITE CABLE PROGRAMMING. 
Law 
Section 705 of the Communications Act of 1934 (47 U.S.C. 605) is «'^f«^'^^'"«'^* ^"^ 
amended— 
(1) in subsection (c)— 
(A) by striking "and" at the end of paragraph (4); 
(B) by striking the period at the end of paragraph (5) and 
inserting "; and '; and 
(C) by adding at the end the following: 
"(6) the term 'any person aggrieved' shall include any person 
with proprietary rights in the intercepted communication by 
wire or radio, including wholesale or retail distributors of sat-
ellite cable programming, and, in the case of a violation of 
paragraph (4) of subsection (d), shall also include any person 
engaged in the lawful manufacture, distribution, or sale of 
equipment necessary to authorize or receive satellite cable 
programming."; 
(2) in subsection (dXD, by striking "$1,000" and inserting 
"$2,000": 
(3) in paragraph (2) of subsection (d), by striking "$25,000" and 
all that follows through the end of that paragraph and inserting 
"$50,000 or imprisoned for not more than 2 years, or both, for 
the first such conviction and shall be fined not more than 
$100,000 or imprisoned for not more than 5 years, or both, for 
any subsequent conviction."; 
(4) in subsection (d)(3)(A), by inserting "or paragraph (4) of 
subsection (d)" immediately after "subsection (a)"; 
(5) in subsection (d)(3)(B) by striking "may" the first time it 
appears; 
(6) in subsection (dX3XBXi), by inserting "may" immediately 
before "grant"; 
(7) in subsection (dX3XBXii), by inserting "may" immediately 
before "award"; 
(8) in subsection (dX3XBXiii), by inserting "shall" immediately 
b6^Dr6 dir©ct 
(9) in subsection (dXSXCXiXII)— 
(A) by inserting "of subsection (a)" immediately after 
"violation"; 
(B) by striking "$250" and inserting "$1,000"; and 
102 STAT. 3960 
PUBLIC LAW 100-667—NOV. 16, 1988 
iO by inserting immediately before the period the follow-
ing: ", and for each violation of paragraph (4) of this 
subsection involved in the action an a^^n^eved party may 
recover statutory damages in a sum not less than $10,000, 
or more than $100,000, as the court considers just"; 
(10) in subsection (dXSXCXii). by striking "$50,000" and insert-
ing "$100,000 for each violation of subsection (a)"; 
(11) in subsection (dXSXCXiii), by striking "$100" and inserting 
"$250"; and 
(12) by striking paragraph (4) of subsection (d) and inserting 
the following: 
"(4) Any person who manufactures, assembles, modifies, imports, 
exports, sells, or distributes any electronic, mechanical, or other 
device or equipment, knowing or having reason to know that the 
device or equipment is primarily of assistance in the unauthorized 
deoyption of satellite cable programming, or is intended for any 
other activity prohibited by subsection (a), shall be fined not more 
than $500,0()0 for each violation, or imprisoned for not more than 5 
years for each violation, or both. For purposes of all penalties and 
remedies established for violations of this paragraph, the prohibited 
activity established herein as it applies to each such device shall be 
deemed a separate violation.". 
17 u s e 119 note. 
SEC. 206. EFFECTIVE DATE. 
This titie and the amendments made by this title take effect on 
January 1, 1989, except that the authority of the Roister of (Copy-
rights to issue regulations pursuant to section 119(bXl) of title 17, 
United States Code, as added by section 202 of this Act, takes effect 
on the date of the enactment of this Act. 
17 u s e 119 note. 
SEC 2W. TERMINATION. 
This titie and the amendments made by this title (other than the 
amendments made by section 205) cease to be effective on Decem-
ber 31,1994. 
Approved November 16, 1988. 
LEGISLATIVE HISTORY—S. 1883 (H.R. 5372): 
HOUSE REPORTS: No. 100-1028 accompanying H.R. 5372 (Comm. on the Judiciary). 
SENATE REPORTS: No. 100-515 (Oomm. on the Judiciary). 
eONGRESSIONAL REOORD, Vol. 134 (1988): 
May 13, considered and passed Senate. 
Oct. 19, considered and passed House, amended. 
Oct. 20, Senate concurred in House amendment.