reglab/statecodes huggingface dataset:
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-22 - Consent to service of process.

37-5B-22. Consent to service of process.
Each applicant for notice filing under this chapter, and each franchisor on whose behalf an application for notice filing is filed, except any applicant and franchisor which are domestic South Dakota entities, shall file with the director an irrevocable consent to service of process.
The irrevocable consent to service shall be in such form as the director may prescribe. The irrevocable consent to service of process shall appoint the director to be the applicant's or franchisor's agent to receive service of any lawful process in any civil action against the applicant or franchisor or their successor or personal representative, which arises under this chapter or any rule or order thereunder.
After the irrevocable consent to service of process has been filed, it has the same force and validity as if served personally on the applicant or franchisor or their successor or personal representative.
If any person, including any nonresident of this state and any foreign corporation, or other entity engages in conduct prohibited or made actionable by this chapter, whether or not they have filed a consent to service of process pursuant to this section, and personal jurisdiction over them cannot otherwise be obtained in this state, that conduct shall be considered equivalent to their appointment of the director to be their agent to receive service of any lawful process in any suit against them or their successors or personal representative which grows out of that conduct and which is brought under this chapter, with the same force and validity as if served on them personally.
If, under this section, the director is an agent to receive process, service may be made by leaving a copy of the process in the office of the director as follows:
(1)The process is not effective unless the plaintiff, who may be the director in an action instituted by the director, forthwith sends notice of the service and a copy of the process by certified mail to the defendant, or forthwith sends notice of the service and a copy of the process to the respondent at their last known address on file with the director; and
(2)The plaintiff's affidavit of compliance with this section is filed with the court at the time as the filing of the complaint.
Source:
SL 2008, ch 203, §22.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-23 - Advertisement.

37-5B-23. Advertisement.
No person may publish or cause to be published in this state any advertisement concerning any franchise after the director has found that the advertisement contains any statement that is false or misleading or omits to make any statement necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, and has so notified the person by written order. The director may issue an order without prior notice or hearing.
After the issuance of an order, the person desiring to use the advertisement may, in writing, request a hearing on the order. Upon the receipt of the written request, the director shall set a hearing to commence within fifteen days after the receipt of the request unless the person making the request consents to a later date. After the hearing, which shall be conducted in accordance with chapter 1-26, the director shall, by written order, either affirm, modify, or vacate the order.
Unless the director requests the filing of an advertisement, there is no requirement to file advertising with the division.
Source:
SL 2008, ch 203, §23.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-24 - Fraud--Class 4 felony.

37-5B-24. Fraud--Class 4 felony.
No person may, directly or indirectly, employ a device, scheme, or artifice to defraud in connection with the offer or sale of a franchise. A violation of this section is a fraudulent practice and a Class 4 felony.
Source:
SL 2008, ch 203, §24.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-25 - Fraud--Class 6 felony.

37-5B-25. Fraud--Class 6 felony.
No person may, directly or indirectly, in connection with the offer or sale of a franchise willfully:
(1)Make an untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading;
(2)Engage in an act, practice, or course of business which operates or would operate as a fraud or deceit on a person;
(3)Represent to a prospective franchisee that the notice filing of a franchise application constitutes a finding by the director that a disclosure document filed under this chapter is true, complete, and not misleading or that the director has passed upon the merits of the disclosure document and the franchise;
(4)Violate an order of the director after the person receives notice that the order was issued;
(5)Misrepresent that a franchise is notice filed or exempted from notice filing under this chapter; and
(6)Omit to state a material fact or make or cause to be made an untrue statement of a material fact in any application, notice, or report filed with the director under this chapter.
A violation of this section is a Class 6 felony.
Source:
SL 2008, ch 203, §25.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-26 - Prohibited practices.

37-5B-26. Prohibited practices.
No person may, directly or indirectly, in connection with the offer or sale of a franchise:
(1)Make any claim or representation, orally, visually, or in writing, that contradicts the information required to be in the disclosure document;
(2)Misrepresent that any person:
(a)Purchased a franchise from the franchisor or operated a franchise of the type offered by the franchisor; or
(b)Can provide an independent and reliable report about the franchise or the experiences of any current or former franchisees;
(3)Disseminate any financial performance representations to prospective franchisees unless the franchisor has a reasonable basis and written substantiation for the representation at the time the representation is made, and the representation is included in the franchisor's disclosure document and the franchise seller:
(a)Discloses the dates when the reported level of financial performance was achieved and of those outlets whose data were used in arriving at the representation, and the number and percent that actually attained or surpassed the stated results if the representation relates to the past performance of the franchisor's outlets; and
(b)Includes a clear and conspicuous admonition that a new franchisee's individual financial results may differ from the result stated in the financial performance representation;
(4)Fail to make available to prospective franchisees, and to the director upon reasonable request, written substantiation for any financial performance representations made in the disclosure document;
(5)Fail to furnish a copy of the franchisor's disclosure document to a prospective franchisee earlier in the sales process than required by §37-5B-17, upon reasonable request;
(6)Fail to furnish a copy of the franchisor's most recent disclosure document and any quarterly updates to a prospective franchisee, upon reasonable request, before the prospective franchisee signs a franchise agreement;
(7)Present for signing a franchise agreement in which the terms and conditions differ materially from those presented as an attachment to the disclosure document, unless the franchise seller informed the prospective franchisee of the differences at least seven days before execution of the franchise agreement;
(8)Disclaim or require a prospective franchisee to waive reliance on any representation made in the disclosure document or in its exhibits or amendments. However, this provision is not intended to prevent a prospective franchisee from voluntarily waiving specific contractual terms and conditions set forth in his or her disclosure document during the course of franchise sale negotiations; and
(9)Fail to return any funds or deposits in accordance with any conditions disclosed in the franchisor's disclosure document, franchise agreement, or any related document.
Source:
SL 2008, ch 203, §26.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-27 - Director approval not permitted.

37-5B-27. Director approval not permitted.
The director may not approve or express any opinion on the legality of any matter a franchisor may be required to disclose under this chapter.
Source:
SL 2008, ch 203, §27.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-29 - Promulgation of rules.

37-5B-29. Promulgation of rules.
The director may promulgate rules pursuant to chapter 1-26 to carry out the provisions of this chapter including forms governing disclosure documents, applications, financial statements, and defining any terms, whether or not used in this chapter, if the definitions are not inconsistent with this chapter. For the purpose of rules the director may classify franchises, persons and matters within the director's jurisdiction, and prescribe different requirements for different classes.
Source:
SL 2008, ch 203, §29.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-32 - Records of filings and orders.

37-5B-32. Records of filings and orders.
The director shall maintain a record which shows the notice filed franchise and for whom filed, and shall specify the conditions, limitations, and restrictions upon the filing, if any, or shall make proper reference to a formal order of the director on file showing the conditions, limitations, and restrictions.
Source:
SL 2008, ch 203, §32.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-33 - Public and nonpublic records.

37-5B-33. Public and nonpublic records.
Each application, notice and report filed with the director under this chapter is open to public inspection in accordance with rules prescribed by the director. The director may publish information filed with the director or obtained by the director, if, in the judgment of the director, such action is in the public interest.
No record obtained by the director pursuant to §37-5B-35 is open to public inspection.
Source:
SL 2008, ch 203, §33.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-34 - Copies of notice filings and orders.

37-5B-34. Copies of notice filings and orders.
The director shall upon request furnish copies to any person, at a reasonable charge, certified under the director's seal of office if certification is requested, of any notice filing, application and order on file in the director's office. Any copy so certified is admissible in evidence under chapter 19-4.
Source:
SL 2008, ch 203, §34.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-35 - Investigations.

37-5B-35. Investigations.
The director may make such public or private investigations within or outside of this state as the director deems necessary to determine if any person has violated or is about to violate any rule, order, or provision under this chapter or to aid in the enforcement of this chapter and in the prescribing of rules and forms under this chapter. The director may publish information concerning the violation of any rule, order, or provision under this chapter.
Source:
SL 2008, ch 203, §35.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-36 - Request for information.

37-5B-36. Request for information.
The director may make a written request to any person for information concerning any investigation being conducted by the director. Failure to respond fully and completely to such a request within fifteen days after receipt thereof constitutes cause for the issuance of a cease and desist order.
Source:
SL 2008, ch 203, §36.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-37 - Subpoena powers.

37-5B-37. Subpoena powers.
For the purpose of any investigation or proceeding under this chapter, the director or any person designated by the director may administer oaths and affirmations, subpoena witnesses and compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the director deems relevant or material to the inquiry.
Any order of the director shall be served by mailing a copy thereof by certified mail to the most recent address of the recipient of the order as it appears in the files of the director. Any subpoena shall be served in the same manner as provided in civil actions in circuit court.
No provision of this chapter either creates any privilege or derogates from any privilege which exists at common law or otherwise, if documentary or other evidence is sought under a subpoena directed to the director or any of the director's officers or employees.
If any person refuses to obey a subpoena, the circuit court, upon application by the director, may issue an order directing the person to appear before the director, or the officer designated by the director, to produce documentary evidence if so ordered, or to give evidence on the matter under investigation or in question. Failure to obey the order of the court is punishable by the court as a contempt of court.
Source:
SL 2008, ch 203, §37.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-38 - Immunity.

37-5B-38. Immunity.
No person is excused from attending and testifying or from producing any document or record before the director, in obedience to a subpoena of the director or any person designated by the director in any proceeding instituted by the director, on the grounds that the testimony or evidence required of the director may tend to incriminate the person or subject the person to a penalty or forfeiture. No person may be prosecuted or subjected to any penalty or forfeiture on account of any transaction, matter, or thing concerning which the person is compelled, after claiming the privilege against self-incrimination, to testify or produce evidence. However, the person testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.
Source:
SL 2008, ch 203, §38.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-39 - Unauthorized use of information--Misdemeanor.

37-5B-39. Unauthorized use of information--Misdemeanor.
It is a Class 2 misdemeanor for the director or any of the director's officers or employees to use for personal benefit any information which is filed with or obtained by the director and which is not generally available to the public. Nothing in this chapter authorizes the director or any of the director's officers or employees to disclose any confidential information except among themselves or to other administrators or regulatory authorities or if necessary or appropriate in a proceeding or investigation under this chapter.
Source:
SL 2008, ch 203, §39.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-40 - Cooperation with other agencies.

37-5B-40. Cooperation with other agencies.
To encourage uniformity in franchise matters among the federal government, self-regulatory organizations, states and foreign governments, the director may cooperate with federal, state or foreign agencies or administrators and law enforcement agencies, including:
(1)Conducting joint examinations and investigations;
(2)Holding joint administrative hearings;
(3)Filing and prosecuting joint civil or administrative proceedings;
(4)Sharing and exchanging information and documents;
(5)Sharing and exchanging personnel;
(6)Formulating statutes, rules, regulations, statements of policy, guidelines, proposed statutory changes and interpretive opinions and releases; and
(7)Issuing and enforcing subpoenas at the request of the Federal Trade Commission or an agency administering franchise statutes in another jurisdiction if the information sought would also be subject to lawful subpoena for conduct occurring in this state.
Source:
SL 2008, ch 203, §40.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-41 - Cease and desist orders.

37-5B-41. Cease and desist orders.
The director, with or without prior notice or hearing, may issue a cease and desist order and may issue an order denying, suspending, or revoking any notice filing, amendment, or exemption if the director finds:
(1)That the applicant, or franchisor or any officer, director, agent, or employee thereof or any other person has violated or failed to comply with any provision of this chapter or any rule or order of the director;
(2)That the offer, sale, or purchase of the franchise would constitute misrepresentation to, or deceit or fraud upon, purchasers thereof, or has worked or tended to work a fraud upon purchasers or would so operate;
(3)That the applicant, or franchisor or any officer, director, agent, or employee thereof or any other person is engaging or is about to engage in false, fraudulent, or deceptive practices in connection with the offer and sale of a franchise;
(4)That any person identified in the disclosure document has been convicted of or had a civil judgment entered against him or her for fraud, theft, fraudulent conversion, restraint of trade, unfair or deceptive practices or misappropriation of property, or is subject to an order issued, after notice and opportunity for hearing, by a state or federal regulatory agency and the involvement of the person in the business of the applicant or franchisor creates a substantial risk to prospective franchisees;
(5)That the financial condition of the franchisor adversely affects or would adversely affect the ability of the franchisor to fulfill its obligations under the franchise agreement; or
(6)That the franchisor's enterprise or method of business includes or would include activities which are illegal where performed.
Source:
SL 2008, ch 203, §41.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-42 - Order to show cause.

37-5B-42. Order to show cause.
As an alternative to the procedure prescribed in §37-5B-41, the director may issue an order to show cause setting a hearing and requiring an applicant, notice filer, franchisor, or other person to appear and show cause why a cease and desist order should not be issued, or why an order denying, suspending, or revoking a notice filing, amendment, or exemption should not be issued. The order shall give reasonable notice of the time and place for hearing, and shall state the reasons for the entry of the order. The hearing shall be conducted in accordance with chapter 1-26. After the hearing, the director shall enter an order making such disposition of the matter as the facts require.
Source:
SL 2008, ch 203, §42.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-43 - Civil penalty.

37-5B-43. Civil penalty.
The director may impose a civil penalty against a person named in an order issued pursuant to subdivisions (1) to (3), inclusive, and subdivision 37-5B-41(6). The amount of the civil penalty may not exceed five thousand dollars for each act or omission that constitutes the basis for issuing the order. The civil penalty may only be imposed:
(1)Following an opportunity for a hearing pursuant to §37-5B-44 if the notice delivered to all named persons includes notice of the director's authority to impose a civil penalty under this section; or
(2)As part of an order issued pursuant to subdivisions (1) to (3), inclusive and subdivision 37-5B-41(6), if the order is stipulated to by each person subject to the civil penalty.
Any civil penalty collected pursuant to this section shall be deposited into the state general fund.
Source:
SL 2008, ch 203, §43.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-44 - Order or request for hearing.

37-5B-44. Order or request for hearing.
Upon the entry of an order pursuant to §37-5B-41 without a hearing, the director of the Division of Insurance shall promptly serve a copy of the order upon the subject applicant, franchisor, or other person. The order shall state the reasons for its issuance and shall either order a hearing, which shall be set for no later than twenty days from the date of the order, or specify that upon the written request of the applicant, franchisor, or other person, the matter will be set for hearing within fifteen days after receipt of the request. With the consent of the applicant, franchisor, or other person a hearing may be held subsequent to the expiration of either period specified in this section. On all orders of the director which do not fix the date for hearing, the interested person may within thirty days demand a hearing on the order.
Source:
SL 2008, ch 203, §44; SL 2017, ch 231 (Ex. Ord. 17-2), §19, eff. Apr. 13, 2017.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-45 - Effect of order without hearing.

37-5B-45. Effect of order without hearing.
If no hearing is requested and none is ordered by the director, an order entered pursuant to §37-5B-41 without a hearing shall remain in effect until it is modified or vacated by the director.
Source:
SL 2008, ch 203, §45.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-46 - Affirmance, modification, or vacation of order.

37-5B-46. Affirmance, modification, or vacation of order.
If a hearing is requested or ordered, the director, after notice and hearing held in accordance with chapter 1-26 shall affirm, modify, or vacate the order.
Source:
SL 2008, ch 203, §46.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-47 - Civil action by attorney general.

37-5B-47. Civil action by attorney general.
If the director has reasonable cause to believe that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule or order thereunder, the director may, in addition to all other remedies, through the attorney general, with such assistance as the attorney general may request of the state's attorneys in the several counties, institute a civil action pursuant to §37-5B-49.
Source:
SL 2008, ch 203, §47.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-48 - Injunctive relief.

37-5B-48. Injunctive relief.
In addition to all other penalties and remedies provided by this chapter, whether administrative or judicial in nature, the courts of this state have jurisdiction to grant such temporary or permanent injunctive relief as is necessary to prevent and restrain violations of this chapter, and may upon a proper showing appoint a receiver for the property, assets, business, and affairs of a franchisor.
Source:
SL 2008, ch 203, §48.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-49 - Civil damages or rescission.

37-5B-49. Civil damages or rescission.
A person who violates any provision of this chapter or any rule or order thereunder is liable to the franchisee for actual damages, costs, and attorneys and experts fees. In the case of a violation of §§37-5B-4, 37-5B-7 to 37-5B-9, inclusive, or 37-5B-17, the franchisee may also sue for rescission. No person is liable under this section if the defendant proves that the plaintiff affirmed the transaction with knowledge of the facts concerning the violation.
Each person who directly or indirectly controls a person liable under this section, each principal executive officer or director of a person so liable, each person occupying a similar status or performing similar functions, and each agent, employee of a person so liable, who materially aids in the act or transaction constituting the violation, is also liable jointly and severally with and to the same extent as such person, unless the person liable proves that he or she did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.
In any suit authorized by this section, other relief may be awarded as the court deems appropriate and the court may in its discretion, if the circumstances are sufficiently egregious, increase the award of damages to an amount not to exceed three times the actual damage sustained.
Except as explicitly provided in this section, no civil liability in favor of any private party may arise against any person by implication from or as a result of the violation of any provision of this chapter or any rule or order thereunder. Nothing in this section limits any liability which would exist by virtue of any other statute or under common law if this chapter were not in effect.
Source:
SL 2008, ch 203, §49.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-50 - Limitation of actions.

37-5B-50. Limitation of actions.
No person may obtain relief for an action pursuant to §37-5B-49:
(1)In an action for rescission pursuant to §§37-5B-4, 37-5B-7 to 37-5B-9, inclusive, or 37-5B-17 unless the action is instituted within one year after the violation occurred;
(2)In an action for actual damages, costs, and attorneys and experts fees unless instituted within the earlier of two years after discovery of the facts constituting the violation or three years after the violation; or
(3)Upon receipt by the franchisee of a rescission offer in a form approved by the director unless the action is instituted within ninety days after the receipt by the franchisee of a rescission.
Source:
SL 2008, ch 203, §50.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-51 - Pending actions and actions based on prior conduct.

37-5B-51. Pending actions and actions based on prior conduct.
Any action or proceeding that is pending on July 1, 2008 or may be instituted on the basis of conduct occurring before July 1, 2008, is still subject to the provisions of chapter 37-5A as of June 30, 2008. However, no civil action may be maintained to enforce any liability under chapter 37-5A unless instituted within any period of limitation that applied when the cause of action accrued or within three years after July 1, 2008, whichever is earlier.
Source:
SL 2008, ch 203, §52.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-52 - Prior registrations and rulings.

37-5B-52. Prior registrations and rulings.
Any effective registration and administrative order relating to the registrations, rules, statements of policy, interpretative opinions, declaratory rulings, no action determinations, and conditions imposed on the registrations prior to July 1, 2008 remain in effect while they would have remained in effect if this chapter had not been enacted. They are considered to have been filed, issued, or imposed under this chapter, but are exclusively governed by chapter 37-5A as of June 30, 2008.
Source:
SL 2008, ch 203, §53.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 05B - Franchise Investment › Section 37-5B-53 - Prior offers and sales.

37-5B-53. Prior offers and sales.
Chapter 37-5A as of June 30, 2008, exclusively applies to an offer or sale made within one year after July 1, 2008 pursuant to an offering made in good faith before July 1, 2008 on the basis of an exemption available under chapter 37-5A.
Source:
SL 2008, ch 203, §54.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-1 - Definition of terms used in counterfeiting provisions.

37-6-1. Definition of terms used in counterfeiting provisions.
The following definitions apply to §§37-6-2 and 37-6-3:
(1)"Affixing" within the meaning of such sections is complete, whether such mark is affixed to the goods themselves, or to any box, bale, barrel, bottle, case, cask, wrapper, or other package, or vessel, or any cover or stopper thereof, in which such goods are put up;
(2)"Goods" includes every kind of goods, wares, merchandise, compound, or preparation which may be lawfully kept or offered for sale;
(3)"Trade-mark" includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrapper, usually affixed by any mechanic, manufacturer, druggist, merchant, or tradesman to denote any goods to be goods imported, manufactured, produced, compounded, or sold by him, other than any name, word, or expression generally denoting any goods to be of some particular class or description.
Source:
SDC 1939, §13.1822.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-2 - Forgery or counterfeiting of trade-mark as misdemeanor--Fraudulent use--Sale of goods under counterfeit mark.

37-6-2. Forgery or counterfeiting of trade-mark as misdemeanor--Fraudulent use--Sale of goods under counterfeit mark.
Every person who intentionally forges or counterfeits any trade-mark usually fixed by any person to any goods of such person with intent to pass off any goods to which such forged or counterfeited trade-mark is affixed as to the goods of such person; or who, with intent to defraud keeps any dies, plate, or brand, or imitation of the trade-mark of any person for the purpose of counterfeiting the same or selling such trade-mark when counterfeited, or affixing the same to any goods and selling the same as genuine goods of the person entitled to the trade-mark; or who fraudulently uses the genuine trade-mark of another with intent to sell or offer for sale or disposal, any goods as genuine, which are not the original and genuine goods of the person to whom the trade-mark properly belongs; or who sells or keeps for sale any goods upon which any counterfeit trade-mark has been affixed, intended to represent such goods as the genuine goods of another, knowing the trade-mark to be counterfeited, is guilty of a Class 1 misdemeanor.
Source:
SDC 1939, §§13.1820, 51.0904, 51.9903; SL 1977, ch 190, §244.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-3 - Imitation of trade-mark as misdemeanor--Civil penalty.

37-6-3. Imitation of trade-mark as misdemeanor--Civil penalty.
Every person who, with intent to defraud, affixes to any goods, or to any container of goods, any label, stamp, brand, imprint, printed wrapper, ticket, or mark, which designates such goods by any word or token which is wholly or in part the same to the eye or to the ear as the word or any of the words or tokens used by any other person as his trade-mark, and every person who knowingly sells or keeps or offers for sale any such goods or containers with any such label, stamp, brand, imprint, printed wrapper, ticket, or mark affixed to or upon it, in case the person affixing such mark, or so selling, exposing, or offering for sale such goods or containers, was not the first to employ or use such words as his trade-mark, is guilty of a Class 1 misdemeanor, and in addition to the punishment prescribed therefor is liable to the party aggrieved in the penal sum of one hundred dollars for each and every offense, to be recovered by him in a civil action.
Source:
SDC 1939, §13.1821; SL 1977, ch 190, §245.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-4 - Definition of terms used in mark registration law.

37-6-4. Definition of terms used in mark registration law.
Terms used in §§37-6-4 to 37-6-27, inclusive, mean:
(1)"Applicant," embraces the person filing an application for registration of a mark under §37-6-5, the person's legal representatives, successors, or assigns;
(2)"Emblem," any badge, motto, button, decoration, charm, rosette, or such other insignia;
(3)"Mark," includes any trademark or service mark entitled to registration under §§37-6-4 to 37-6-27, inclusive, whether registered or not;
(4)"Person," any individual, firm, partnership, limited liability company, corporation, association, union or other organization;
(5)"Registrant," the person to whom the registration of a mark under §37-6-13 is issued, the person's legal representatives, successors, or assigns;
(6)"Service mark," a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others;
(7)A service mark is "used" if it is used or displayed in the sale or advertising of services and the services are rendered in this state;
(8)"Trademark," any word, name, symbol, emblem, or device or any combination thereof adopted and used by a person to identify goods made or sold by such person and to distinguish them from goods made or sold by others;
(9)For the purposes of §§37-6-4 to 37-6-27, inclusive, a trade mark is "used" if it is placed in any manner on the goods or their containers or on the tags or labels affixed thereto and such goods are sold or otherwise distributed in this state.
Source:
SDC 1939, §51.0902; SL 1955, ch 232, §1; SDC Supp 1960, §51.0901; SL 1980, ch 264, §2; SL 1994, ch 351, §86.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-5 - Application to secretary of state for registration of mark--Contents and signature of application--Facsimile--Filing fee.

37-6-5. Application to secretary of state for registration of mark--Contents and signature of application--Facsimile--Filing fee.
Subject to the limitations set forth in §§37-6-6 to 37-6-11, inclusive, any person who adopts and uses a mark in this state may file in the Office of the Secretary of State, on a form to be furnished by the secretary of state, an application for registration of that mark setting forth the following information:
(1)The name and business address of the person applying for the registration; and, if a corporation, the state of incorporation;
(2)The goods or services in connection with which the mark is used and the mode or manner in which the mark is used in connection with the goods or services and the class in which the goods fall;
(3)The date when the mark was first used anywhere and the date when it was first used in this state by the applicant or the applicant's predecessor in business; and
(4)A statement that the applicant is the owner of the mark and that no other person has the right to use the mark in this state either in the identical form thereof or in such near resemblance thereto as might be calculated to deceive or to be mistaken therefor.
The application shall be signed under oath by the applicant or by a member of the firm or an officer of the corporation or association applying. The application shall be accompanied by a specimen or facsimile of the mark in duplicate no larger than eight and one-half inches by eleven inches. The application for registration shall be accompanied by a filing fee of one hundred twenty-five dollars, payable to the secretary of state.
Source:
SDC 1939, §§51.0901, 51.0903; SL 1955, ch 232, §3; SL 1980, ch 264, §3; SL 1997, ch 141, §2; SL 2003, ch 8, §7; SL 2006, ch 203, §2; SL 2009, ch 4, §7.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-6 - Mark containing immoral, deceptive or scandalous matter not registrable.

37-6-6. Mark containing immoral, deceptive or scandalous matter not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises immoral, deceptive, or scandalous matter.
Source:
SL 1955, ch 232, §2; SDC Supp 1960, §51.0902 (1); SL 1980, ch 264, §4.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-7 - Mark disparaging or suggesting connection with persons, institutions, beliefs or national symbols not registrable.

37-6-7. Mark disparaging or suggesting connection with persons, institutions, beliefs or national symbols not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods of others shall not be registered if it consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.
Source:
SL 1955, ch 232, §2; SDC Supp 1960, §51.0902 (2); SL 1980, ch 264, §5.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-8 - Mark using or simulating flags or governmental insignia not registrable.

37-6-8. Mark using or simulating flags or governmental insignia not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof.
Source:
SL 1955, ch 232, §2; SDC Supp 1960, §51.0902 (3); SL 1980, ch 264, §6.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-9 - Mark identified with living persons not registrable except by consent.

37-6-9. Mark identified with living persons not registrable except by consent.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises the name, signature or portrait of any living individual, except with his written consent.
Source:
SL 1955, ch 232, §2; SDC Supp 1960, §51.0902 (4); SL 1980, ch 264, §7.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-10 - Deceptive and merely descriptive marks not registrable--Marks made distinctive by previous use.

37-6-10. Deceptive and merely descriptive marks not registrable--Marks made distinctive by previous use.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others may not be registered if it consists of a mark which:
(1)When applied to the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them; or
(2)When applied to the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them; or
(3)Is primarily merely a surname.
However, nothing in this section prevents the registration of a mark used in this state by the applicant which has become distinctive of the applicant's goods or services. The secretary of state may accept as evidence that the mark has become distinctive, as applied to the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this state or elsewhere for the five years next preceding the date of the filing of the application for registration.
Source:
SDC 1939, §51.0904; SL 1955, ch 232, §2; SDC Supp 1960, §51.0902 (5); SL 1980, ch 264, §8; SL 1987, ch 29, §94.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-11 - Mark similar to previously used marks not registrable.

37-6-11. Mark similar to previously used marks not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods of others shall not be registered if it consists of or comprises a mark which so resembles a mark registered in this state or a mark or trade name previously used in this state by another and not abandoned, as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive.
Source:
SL 1955, ch 232, §2; SDC Supp 1960, §51.0902 (6); SL 1980, ch 264, §9.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-13 - Certificate of registration issued by secretary of state--Contents.

37-6-13. Certificate of registration issued by secretary of state--Contents.
Upon compliance by the applicant with the requirements of §§37-6-5 to 37-6-12, inclusive, the secretary of state shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the secretary of state and the seal of the state, and it shall show the name and business address and, if a corporation, the state of incorporation, of the person claiming ownership of the mark, the date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this state, the class of goods and a description of the goods on which or services for which the mark is used, a reproduction of the mark, the registration date and the term of the registration.
Source:
SDC 1939, §51.0905; SL 1955, ch 232, §4; SDC Supp 1960, §51.0904; SL 1980, ch 264, §11.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-14 - Term of registration--Renewal.

37-6-14. Term of registration--Renewal.
Registration of a mark under §37-6-13 is effective for a term of four years from the date of registration. Upon application filed within six months prior to the expiration of the term, on a form to be furnished by the secretary of state, the registration may be renewed for a like term. A renewal fee of one hundred twenty-five dollars, payable to the secretary of state, shall accompany the application for renewal of the registration. A mark registration may be renewed for successive periods of four years in like manner.
Source:
SL 1955, ch 232, §5; SDC Supp 1960, §51.0905; SL 1980, ch 264, §12; SL 1997, ch 141, §3; SL 2003, ch 8, §8; SL 2009, ch 4, §8.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-16 - Civil liability for damages from fraudulent mark registration.

37-6-16. Civil liability for damages from fraudulent mark registration.
Any person who shall for himself, or on behalf of any other person, procure the filing or registration of a mark in the Office of the Secretary of State under the provisions of §37-6-5 or 37-6-13, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.
Source:
SL 1955, ch 232, §10; SDC Supp 1960, §51.0910; SL 1980, ch 264, §13.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-17 - Assignment of mark and registration with good will--Recording and new certificate--Fee--Validity of assignment against subsequent purchaser.

37-6-17. Assignment of mark and registration with good will--Recording and new certificate--Fee--Validity of assignment against subsequent purchaser.
A mark and its registration under §37-6-13 is assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be recorded with the secretary of state upon the payment of a fee of one hundred twenty-five dollars payable to the secretary of state. Upon recording of the assignment, the secretary of state shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under §37-6-13 is void as against any subsequent purchaser for valuable consideration without notice unless it is recorded with the secretary of state within three months after the date thereof or prior to the subsequent purchase.
Source:
SL 1955, ch 232, §6; SDC Supp 1960, §51.0906; SL 1980, ch 264, §14; SL 1997, ch 141, §4; SL 2003, ch 8, §9; SL 2009, ch 4, §9.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-18 - Cancellation of registration on request or due to error or fraud.

37-6-18. Cancellation of registration on request or due to error or fraud.
The secretary of state shall cancel from the register any registration for which the secretary of state has received a voluntary request for cancellation from the registrant or the assignee of record. The secretary of state, upon notice to the registrant, may cancel from the register any registration that the secretary of state granted in the previous one hundred eighty days upon a finding that:
(1)The registration was granted improperly or in error; or
(2)The registration was obtained fraudulently.
If the registrant objects, a hearing shall be conducted pursuant to chapter 1-26.
Source:
SL 1955, ch 232, §8; SDC Supp 1960, §51.0908 (2); SL 2010, ch 196, §1.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-19 - Cancellation of registration on court findings.

37-6-19. Cancellation of registration on court findings.
The secretary of state shall cancel from the register any registration concerning which a court of competent jurisdiction shall find
(1)That the registered mark has been abandoned;
(2)That the registrant is not the owner of the mark;
(3)That the registration was granted improperly; or
(4)That the registration was obtained fraudulently.
Source:
SL 1955, ch 232, §8; SDC Supp 1960, §51.0908 (4); SL 1980, ch 264, §15.
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-20 - Cancellation of registration on court order.

37-6-20. Cancellation of registration on court order.
The secretary of state shall cancel from the register when a court of competent jurisdiction shall order cancellation of a registration on any ground.
Source:
SL 1955, ch 232, §8; SDC Supp 1960, §51.0908 (5).
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-21 - Cancellation of registrations not renewed.

37-6-21. Cancellation of registrations not renewed.
The secretary of state shall cancel from the register all registrations granted under §37-6-13 and not renewed in accordance with the provisions of §37-6-14.
Source:
SL 1955, ch 232, §8; SDC Supp 1960, §51.0908 (3).
2023 South Dakota Codified Laws › Title 37 - Trade Regulation › Chapter 06 - Trademark And Service Mark Protection › Section 37-6-22 - Public record of registered marks.

37-6-22. Public record of registered marks.
The secretary of state shall keep for public examination a record of all marks registered or renewed under §§37-6-13 and 37-6-14.
Source:
SL 1955, ch 232, §7; SDC Supp 1960, §51.0907; SL 1980, ch 264, §16.