2007 Oregon Code - Chapter 647 :: Chapter 647 - Trademarks and Service Marks - Music Royalties
Chapter 647 —
Trademarks and Service Marks; Music Royalties
2007 EDITION
TRADEMARKS AND SERVICE MARKS; MUSIC ROYALTIES
TRADE REGULATIONS AND PRACTICES
TRADEMARKS AND SERVICE MARKS
(Generally)
647.005Â Â Â Â Definitions
(Registration)
647.009Â Â Â Â Filing,
service, copying and certification fees
647.015Â Â Â Â Application
for registration
647.024Â Â Â Â Rules
for classes of goods and services
647.029Â Â Â Â Refusal
to register mark; grounds; form of refusal
647.035Â Â Â Â Marks
ineligible for registration
647.045Â Â Â Â Certificate
of registration; evidentiary effect
647.055Â Â Â Â Period
of registration; renewal; rules; record of registrations
647.065Â Â Â Â Assignment
of mark; procedure
647.075Â Â Â Â Cancellation
of registrations
(Remedies)
647.085Â Â Â Â Fraudulent
registration prohibited; liability
647.095Â Â Â Â Civil
action for infringement; limitation on recovery
647.105Â Â Â Â Remedies
for infringement
647.107Â Â Â Â Grounds
for injunctive relief
647.111Â Â Â Â Seizure
of counterfeit goods in infringement proceeding; liability for wrongful
seizure; undertaking
647.115Â Â Â Â Effect
of chapter on marks or trade names acquired at common law; effect of civil
remedies on criminal statutes
647.135Â Â Â Â Trademark
counterfeiting
647.140Â Â Â Â Trademark
counterfeiting in third degree; penalty
647.145Â Â Â Â Trademark
counterfeiting in second degree; penalty
647.150Â Â Â Â Trademark
counterfeiting in first degree; penalty
647.155Â Â Â Â Seizure,
forfeiture and disposal
ROYALTIES FOR NONDRAMATIC MUSICAL WORKS
647.700Â Â Â Â Definitions
for ORS 647.700 to 647.730
647.705Â Â Â Â Requirements
for performing rights societies
647.710Â Â Â Â Requirements
for contracts for payment of royalties
647.715Â Â Â Â Prohibited
conduct
647.720Â Â Â Â Action
for damages; injunction
647.725Â Â Â Â Relationship
to other laws
647.730Â Â Â Â Applicability
of ORS 647.700 to 647.730
TRADEMARKS AND SERVICE MARKS
(Generally)
     647.005
Definitions. (1) As used in
this chapter:
     (a) “Applicant” embraces the person who
applies to register a mark under this chapter, and the personÂ’s legal
representatives, successors or assigns.
     (b) “Mark” includes any trademark or
service mark entitled to registration under this chapter whether registered or
not.
     (c) “Person” means any individual, firm,
partnership, corporation, association, union or other organization.
     (d) “Registrant” embraces the person to
whom the registration of a mark is issued under this chapter, and the personÂ’s
legal representatives, successors or assigns.
     (e) “Retail value” means:
     (A) For items that bear a counterfeit mark
and are components of a finished product, the regular selling price of the
finished product in which the component would be utilized.
     (B) For all items that bear a counterfeit
mark other than those described in subparagraph (A) of this paragraph and for
all services that are identified by a counterfeit mark, the regular selling
price of the item or service.
     (f) “Trademark” means any word, name,
symbol, device or any combination thereof adopted and used by a person to
identify goods made or sold by the person and to distinguish them from goods
made or sold by others.
     (g) “Trade name” means a word, name,
symbol, device or any combination thereof used by a person to identify the
personÂ’s business, vocation or occupation and to distinguish it from the
business, vocation or occupation of others.
     (h) “Service mark” means any word, name,
symbol, device or any combination thereof used by a person in the sale or
advertising of services to identify the personÂ’s services and to distinguish
them from the services of others.
     (2) For the purposes of this chapter, a
mark shall be deemed to be “used” in this state:
     (a) On goods when 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 and such goods are sold or otherwise
distributed in this state; and
     (b) On services when it is used or displayed
in the sale or advertising of services and the services are rendered in this
state.
     (3) For purposes of this chapter, a mark
shall be deemed to be “abandoned” in this state when either of the following
occurs:
     (a) When its use has been discontinued with
intent not to resume. Intent not to resume may be inferred from the
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;
or
     (b) When any course of conduct of the
registrant, 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. [1961 c.497 §1; 1965 c.511 §1; 1981 c.633 §71; 1989 c.931 §1; 1999
c.722 §7]
(Registration)
     647.009
Filing, service, copying and certification fees. The Secretary of State shall collect the
fees described in ORS 56.140 for each document delivered for filing under this
chapter and for process served on the secretary under this chapter. The
secretary may collect the fees described in ORS 56.140 for copying any public
record under this chapter, certifying the copy or certifying to other facts of
record under this chapter. [1991 c.132 §23; 1999 c.652 §17]
     647.010 [Repealed by 1961 c.497 §16]
     647.015
Application for registration.
(1) Subject to the limitations set forth in this chapter, any person who adopts
and uses a mark in this state may submit for filing to 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, but not limited to,
the following information:
     (a) The name and business address of the
person applying for such registration; and, if a corporation, the state of
incorporation.
     (b) The goods or services in connection
with which the mark is used and mode or manner in which the mark is used in
connection with such goods or services and the class in which such goods or
services fall.
     (c) 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 predecessor of the applicant in business.
     (d) A statement that the applicant
believes the applicant is the owner of the mark and that no other person has
the right to use such 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.
     (e) A mailing address to which the
Secretary of State may mail notices.
     (f) Any additional identifying information
that the Secretary of State by rule may require.
     (2) The application for registration shall
be:
     (a) Signed and verified by the applicant
or by a member of the firm or an officer of the corporation or association
applying.
     (b) Accompanied by a specimen or facsimile
of the mark. [1961 c.497 §3; 1965 c.511 §2; 1971 c.318 §2; 1985 c.728 §84; 1991
c.132 §20]
     647.020 [Repealed by 1961 c.497 §16]
     647.024
Rules for classes of goods and services. The Secretary of State may establish by rule classes of goods and
services for convenience in the administration of this chapter. The classes
that the Secretary of State establishes shall not enlarge or diminish the
rights of an applicant or a registrant. [1985 c.728 §84b (enacted in lieu of
647.025)]
     647.025 [1961 c.497 §9; 1965 c.511 §3; repealed by
1985 c.728 §§84a,110 (647.024 enacted in lieu of 647.025)]
     647.029
Refusal to register mark; grounds; form of refusal. (1) The Secretary of State shall refuse to
register a mark if the Secretary of State finds that the mark so resembles
either a mark not registered under this chapter or a trade name that a person
other than the applicant previously has used in this state and not abandoned,
as to be likely, when applied to the goods or when used in connection with the
services of the applicant, to cause confusion or mistake, or to deceive. This
subsection shall not be construed to require the Secretary of State to conduct
any investigation.
     (2) Any finding that the Secretary of
State makes under subsection (1) of this section shall be in writing, and each
finding shall be supported by evidence of use of the mark or trade name. A
refusal to register a mark under this section is a final order for purposes of
ORS chapter 183.
     (3) A copy of a registration on the
Principal Register of the United States Patent and Trademark Office dated prior
to the date that the applicant claims as a date of first use under ORS 647.015
is sufficient evidence to support a finding under this section. A document
submitted to the Office of the Secretary of State under ORS chapter 60, 65, 70
or 648 is not evidence that a corporate name, limited partnership name or
assumed business name stated in the document has been used. [1985 c.728 §85b;
1987 c.94 §104]
     647.030 [Repealed by 1961 c.497 §16]
     647.035
Marks ineligible for registration. (1) The Secretary of State may not register as a mark any word,
phrase, symbol, device or combination thereof if it:
     (a) Consists of or comprises immoral,
deceptive or scandalous matter;
     (b) Consists of or comprises matter that
may disparage or falsely suggest a connection with persons living or dead,
institutions, beliefs or national symbols, or bring them into contempt or
disrepute;
     (c) Consists of or comprises the flag or
coat of arms or other insignia of the
     (d) Consists of or comprises the name,
signature or portrait of any living individual except with the individualÂ’s
written consent;
     (e) Consists of or comprises a mark that
so resembles a mark registered in this state as to be likely, when applied to
the goods or services of the applicant, to cause confusion or mistake or to
deceive; or
     (f) Consists of a word, phrase, symbol,
device or combination thereof that:
     (A) When applied to the goods or services
of the applicant is merely descriptive or deceptively misdescriptive of them;
     (B) When applied to the goods or services
of the applicant is primarily geographically descriptive or deceptively
misdescriptive of them; or
     (C) Is primarily merely a surname.
     (2) Nothing in subsection (1)(f) of this
section shall prevent the registration of a mark used in this state by the
applicant that has become distinctive of the applicantÂ’s goods or services. The
Secretary of State may accept as evidence that the mark has become distinctive,
as applied to the applicantÂ’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. [1961 c.497 §2; 1965 c.511 §4; 1971 c.318 §3; 1985 c.728 §85;
2005 c.22 §450]
     647.040 [Amended by 1959 c.261 §1; repealed by 1961
c.497 §16]
     647.045
Certificate of registration; evidentiary effect. (1) Upon compliance by the applicant with
the requirements of this chapter, the Secretary of State:
     (a) Shall file the original application;
and
     (b) Shall issue and return to the person
who submitted the application a certificate of registration.
     (2) The Secretary of State may designate
the copy of the application marked “filed” to be the certificate of
registration.
     (3) Any certificate of registration issued
by the Secretary of State under this chapter, or a copy thereof duly certified
by the Secretary of State, shall be prima facie evidence in any action or
judicial proceeding in any court of this state of:
     (a) The validity of the registration of
the mark.
     (b) Registrant’s ownership of the mark.
     (c) Registrant’s exclusive right to use
the mark in trade within the state in connection with the goods or services
specified in the application. [1961 c.497 §4; 1965 c.511 §5; 1971 c.318 §4;
1985 c.728 §86]
     647.050 [Repealed by 1961 c.497 §16]
     647.055
Period of registration; renewal; rules; record of registrations. (1) Registration of a mark under this
chapter shall be effective for a term of five years from the date of
registration and may be renewed for successive five-year terms. The
registration shall be renewed if the mark is still in use and the registrant
submits a signed and verified application on a form to be furnished by the
Secretary of State within 90 days prior to the expiration of the term of
registration.
     (2) The Secretary of State shall notify
each registrant of a mark under this chapter of the necessity of renewal at
least 90 days prior to the expiration of the term of registration by writing to
the address shown for the registrant in the current records of the Office of
the Secretary of State.
     (3) Each application for a renewal under
this section shall include:
     (a) A statement that the mark is still in
use in this state;
     (b) A mailing address to which the
Secretary of State may mail notices; and
     (c) Additional information that the
Secretary of State by rule may require.
     (4) The Secretary of State shall keep for
public examination a record of all marks registered or renewed under this
chapter. [1961 c.497 §§5,7; 1965 c.511 §6; 1971 c.318 §5; 1981 c.633 §72; 1985
c.728 §86a; 1989 c.931 §2; 1991 c.132 §21]
     647.060 [Repealed by 1961 c.497 §16]
     647.065
Assignment of mark; procedure.
Any mark and its registration under this chapter shall be assignable with the
goodwill of the business in which the mark is used, or with that part of the
goodwill of the business connected with the use of and symbolized by the mark.
Assignment shall be by instruments in writing and signed and may be submitted
for filing to the Office of the Secretary of State. The Secretary of State,
upon filing the assignment, shall notify the assignee of the filing of the
assignment. An assignment of any registration under this chapter shall be void
as against any subsequent purchaser for valuable consideration without notice
unless it is submitted for filing to the Office of the Secretary of State
within three months after the date thereof or prior to such subsequent
purchase. [1961 c.497 §6; 1965 c.511 §7; 1971 c.318 §6; 1985 c.351 §25; 1985
c.728 §87a; 2005 c.22 §451]
     647.070 [Repealed by 1961 c.497 §16]
     647.075
Cancellation of registrations.
(1) The Secretary of State shall cancel a registration of a mark when:
     (a) The Secretary of State receives a
voluntary request from the registrant or the assignee of record to cancel the
registration.
     (b) The registration has not been renewed
in accordance with the provisions of ORS 647.055.
     (c) A court of competent jurisdiction
either orders cancellation of the registration or finds that:
     (A) The registered mark has been
abandoned.
     (B) The registrant is not the owner of the
mark.
     (C) The registration was granted
improperly.
     (D) The registration was obtained
fraudulently.
     (2) The Secretary of State may cancel a
registration of a mark when, after providing the registrant with an opportunity
for a hearing, the Secretary of State makes a written finding that:
     (a) The registered mark has been abandoned.
     (b) The registrant is not the owner of the
mark.
     (c) The registration was obtained
fraudulently.
     (d) The Secretary of State filed the
registration in error.
     (3) The Secretary of State’s cancellation
of a registration under this section is a final order within the meaning of ORS
183.480 to 183.497. [1961 c.497 §8; 1965 c.511 §8; 1971 c.318 §7; 1981 c.633 §73;
1985 c.728 §88]
     647.080 [Repealed by 1961 c.497 §16]
(Remedies)
     647.085
Fraudulent registration prohibited; liability. (1) No person shall procure or maintain on
behalf of the person or any other person the filing or registration of any mark
in the Office of the Secretary of State under the provisions of this chapter,
by knowingly making any false or fraudulent representation or declaration,
orally or in writing, or by any other fraudulent means.
     (2) A person who violates subsection (1)
of this section is liable to pay all damages sustained in consequence of such
filing or registration, to be recovered in any court of competent jurisdiction
by or on behalf of the party injured thereby. [1961 c.497 §10; 1965 c.511 §9;
1971 c.318 §8; 1981 c.633 §73a]
     647.090 [Repealed by 1961 c.497 §16]
     647.095
Civil action for infringement; limitation on recovery. (1) Subject to the provisions of ORS 647.115
and subsection (2) of this section, a person is subject to a civil action by
the owner of a registered mark for any or all of the remedies provided in ORS
647.105 and 647.111 if such person:
     (a) Uses, without the consent of the
registrant, any reproduction, counterfeit, copy or colorable imitation of a
mark registered under this chapter in connection with the sale, offering for
sale or advertising of any goods or services on or in connection with which
such use is likely to cause confusion or mistake or to deceive as to the source
of origin of such goods or services; or
     (b) Reproduces, counterfeits, copies or
colorably imitates any such mark and applies such reproduction, counterfeit,
copy or colorable imitation to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used upon or in conjunction with
the sale or other distribution in this state of such goods or services.
     (2) The registrant is not entitled to
recover profits or damages under subsection (1)(b) of this section unless the
acts have been committed with knowledge that such mark is intended to be used
to cause confusion or mistake or to deceive. [1961 c.497 §11; 1965 c.511 §10;
1985 c.566 §1]
     647.100 [Repealed by 1961 c.497 §16]
     647.105
Remedies for infringement.
(1) Any owner of a mark registered under this chapter may proceed in a civil
action to obtain any remedy or combination of remedies provided in this section
against any person who engages in the manufacture, use, display or sale of any
counterfeits or imitations of the mark. Any court of competent jurisdiction may
grant injunctions to restrain such manufacture, use, display or sale as may be
by the court deemed just and reasonable and shall require the defendant to pay
to the owner the greater of $10,000 or the sum of:
     (a) An amount not to exceed three times
the profits derived by the defendant from the wrongful manufacture, use,
display or sale; and
     (b) An amount not to exceed three times
all damages suffered by the owner because of the wrongful manufacture, use,
display or sale.
     (2) If the court under this section
determines that a mark is counterfeit:
     (a) The court may order the destruction of
all such counterfeit marks, all means of making the marks and all goods,
articles or other matter bearing the marks that are in the possession or
control of the court or any party to the action; or
     (b) Upon consent of the owner of the mark,
the court may dispose of the materials after the counterfeit mark is
obliterated, if obliteration does not destroy the materials bearing the mark,
by ordering their transfer to any governmental entity, the owner of the mark, a
charitable organization or any appropriate private person other than the person
from whom the materials were obtained.
     (3) The court under this section also may
order seizure of the counterfeit goods in the manner provided in ORS 647.111. [1961
c.497 §12; 1965 c.511 §11; 1985 c.566 §2]
     647.107
Grounds for injunctive relief.
Likelihood of injury to business reputation or of dilution of the distinctive
quality of a mark registered under ORS 647.015, or a mark valid at common law,
or a trade name valid at common law, shall be a ground for injunctive relief
notwithstanding the absence of competition between the parties or the absence
of confusion as to the source of goods or services. [1971 c.122 §2]
     647.110 [Repealed by 1961 c.497 §16]
     647.111
Seizure of counterfeit goods in infringement proceeding; liability for wrongful
seizure; undertaking. (1) In
a civil action under ORS 647.105, upon motion by the plaintiff with or without
notice to the defendant, the court may order seizure of the counterfeit goods
from any person manufacturing, displaying for sale or selling the goods if the
plaintiff shows good cause and a probability of success on the merits and posts
an undertaking under subsection (6) of this section.
     (2) If the plaintiff makes a motion
without notice to the defendant for an order for seizure and the court
determines from the motion that there is good reason for proceeding without
notice to the defendant, the court may waive the requirement of notice and
order seizure of the counterfeit goods.
     (3) Any person from whom seizure is
effected by order of the court under this section shall be served with the
order at the time of the seizure. The order of seizure shall set forth:
     (a) The date or dates on which the seizure
is ordered to take place;
     (b) A description of the counterfeit goods
to be seized;
     (c) The identity of the person or
description of the authority of the person who will seize the counterfeit
goods;
     (d) A description of the location or
locations at which seizure is to occur; and
     (e) A hearing date not more than 10 court
days after the last date on which seizure is ordered at which any person from
whom goods are seized may appear and seek release of the seized goods.
     (4) If the plaintiff causes seizure of
goods that are not counterfeit, the plaintiff shall be liable for the following
damages, costs and expenses:
     (a) Any damages proximately caused by the
seizure of goods that are not counterfeit to any person having a financial
interest in the seized goods.
     (b) Costs incurred by any person in
defending against seizure of noncounterfeit goods.
     (c) Expenses, including reasonable
attorney defending against the seizure of any noncounterfeit or noninfringing
goods, upon a showing that the plaintiff acted in bad faith in causing the
seizure to occur.
     (d) Punitive damages, if warranted.
     (5) A person seeking a recovery under
subsection (4) of this section may join any surety on an undertaking posted
under subsection (6) of this section. Any judgment of liability shall bind the
person liable under subsection (4) of this section and the surety jointly and
severally, but the liability of the surety shall be limited to the amount of the
undertaking.
     (6) The court shall set the amount of the
undertaking required by subsection (1) of this section in accordance with the
recovery of damages, costs and expenses under subsection (4) of this section
that would be likely if the court ultimately were to determine that the goods
seized were not counterfeit.
     (7) Any person entitled to recover under
subsection (4) of this section, within 30 days after the date of seizure, may
object to the undertaking on the ground that the surety or the amount of
undertaking is insufficient.
     (8) The motion filed pursuant to
subsection (1) of this section shall include a statement:
     (a) Advising the person from whom the
goods are seized that the undertaking has been filed;
     (b) Informing the person of the right to
object to the undertaking on the ground that the surety or the amount of the
undertaking is insufficient; and
     (c) Advising the person from whom the
goods are seized that the objection to the undertaking must be made within 30
days after the date of seizure. [1985 c.566 §4]
     647.115
Effect of chapter on marks or trade names acquired at common law; effect of
civil remedies on criminal statutes. (1) Nothing in this chapter shall adversely affect the rights or the
enforcement of rights in marks or trade names acquired in good faith at any
time at common law.
     (2) The enumeration of any right or remedy
in this chapter does not affect the right of a registrant to prosecute under
any penal law of this state. [1961 c.497 §14; 1965 c.511 §12; 1985 c.566 §5;
1985 c.728 §89]
     647.120 [Repealed by 1961 c.497 §16]
     647.125 [1985 c.566 §6; repealed by 1999 c.722 §9]
     647.130 [Repealed by 1961 c.497 §16]
     647.135
Trademark counterfeiting.
(1) A person commits trademark counterfeiting if the person knowingly and with the
intent to sell or distribute and without the consent of the registrant uses,
displays, advertises, distributes, offers for sale, sells or possesses any item
that bears a counterfeit of a mark or any service that is identified by a
counterfeit of a mark registered under this chapter or registered under this
chapter or registered under 15 U.S.C. 1052 with knowledge that the mark is
counterfeit.
     (2) For purposes of this section, a mark
is counterfeit if:
     (a) It is a mark that is identical to or
substantially indistinguishable from a registered mark; and
     (b) It is used on or in connection with
the same type of goods or services for which the genuine mark is registered.
     (3) A person does not commit trademark
counterfeiting if the person has adopted and lawfully used the same or a
confusingly similar mark in the rendition of like services or the manufacture
of like goods in this state from a date before the effective date of
registration of the service mark or trademark and continues to use the mark
after the effective date of registration. [1999 c.722 §2]
     647.140
Trademark counterfeiting in third degree; penalty. (1) A person commits the crime of trademark
counterfeiting in the third degree if the person commits trademark
counterfeiting as described in ORS 647.135 and:
     (a) The total number of items bearing the
counterfeit mark is not more than 100; or
     (b) The total retail value of all of the
items bearing the counterfeit mark or services that are identified by the
counterfeit mark is not more than $1,000.
     (2) Trademark counterfeiting in the third
degree is a Class A misdemeanor. Notwithstanding ORS 161.655, if the person
convicted under this section is a corporation, the maximum fine that may be
imposed is $100,000. [1999 c.722 §3]
     647.145
Trademark counterfeiting in second degree; penalty. (1) A person commits the crime of trademark
counterfeiting in the second degree if the person:
     (a) Commits trademark counterfeiting as
described in ORS 647.135 and:
     (A) Has one prior conviction for trademark
counterfeiting in any degree;
     (B) The total number of items bearing the
counterfeit mark is more than 100 but less than 1,000; or
     (C) The total retail value of all of the
items bearing the counterfeit mark or services that are identified by the
counterfeit mark is more than $1,000 but less than $10,000.
     (b) Knowingly manufactures or produces
with intent to sell or distribute any item that bears a counterfeit mark or any
service that is identified by a counterfeit mark.
     (2) Trademark counterfeiting in the second
degree is a Class C felony. However, notwithstanding ORS 161.655, if the person
is convicted under:
     (a) Subsection (1)(a)(A) of this section
and is a corporation, the maximum fine that may be imposed is $200,000.
     (b) Subsection (1)(b) of this section and
the person has one prior conviction for trademark counterfeiting in any degree
and is a corporation, the maximum fine that may be imposed is $200,000. [1999
c.722 §4]
     647.150
Trademark counterfeiting in first degree; penalty. (1) A person commits the crime of trademark
counterfeiting in the first degree if the person commits trademark
counterfeiting as described in ORS 647.135 or 647.145 (1)(b) and:
     (a) Has two or more prior convictions for
trademark counterfeiting in any degree;
     (b) The total number of items bearing the
counterfeit mark is 1,000 or more; or
     (c) The total retail value of all of the
items bearing the counterfeit mark or services that are identified by the
counterfeit mark is $10,000 or more.
     (2) Trademark counterfeiting in the first
degree is a Class B felony. [1999 c.722 §5]
     647.155
Seizure, forfeiture and disposal. (1) The following are subject to seizure and forfeiture in the same
manner as the proceeds of prohibited conduct under ORS chapter 475A:
     (a) All raw materials and equipment that
are used, or intended for use, in providing, manufacturing and delivering items
bearing a counterfeit mark or services identified by a counterfeit mark;
     (b) All conveyances that are used, or
intended for use, to transport items bearing a counterfeit mark;
     (c) All books, records, computers and data
that are used or intended for use in the production, manufacture, sale or
delivery of items bearing a counterfeit mark or services identified by a
counterfeit mark; and
     (d) All moneys, negotiable instruments,
balances in deposit or other accounts, securities or other things of value
furnished or intended to be furnished by any person in the course of activity
constituting a violation of ORS 647.140, 647.145 or 647.150.
     (2) Items bearing a counterfeit mark are
subject to seizure and disposition as provided in ORS 133.525 to 133.703.
However, if the registrant so requests, the agency holding the seized items
shall release the seized items to the registrant or make such other disposition
as the registrant directs. If the registrant does not direct disposition of the
seized items, the agency shall destroy the items. [1999 c.722 §6; 2001 c.780 §§17,17a]
ROYALTIES FOR
NONDRAMATIC MUSICAL WORKS
     647.700
Definitions for ORS 647.700 to 647.730. As used in ORS 647.700 to 647.730, unless the context requires
otherwise:
     (1) “Copyright owner” means the owner of a
copyright of a nondramatic musical or similar work recognized and enforceable
under the copyright laws of the United States pursuant to title 17 of the
United States Code (P.L. 94-553, 17 U.S.C. 101 et seq.).
     (2) “Nondramatic” means the public
performance of a recorded, broadcast or live musical work. “Nondramatic” does
not include the performance of a dramatic work, including a play.
     (3) “Performing rights society” means an
association or corporation that licenses the public performances of nondramatic
musical works on behalf of copyright owners, including but not limited to:
     (a) The American Society of Composers,
Authors and Publishers (ASCAP);
     (b) Broadcast Music, Inc. (BMI); and
     (c) The Society of European Stage Authors
and Composers (SESAC).
     (4) “Proprietor” means the owner of a
retail establishment, restaurant, inn, bar, tavern, sports or entertainment
facility or any other similar place of business or professional office located
in this state in which the public may assemble and in which nondramatic musical
works or similar copyrighted works may be performed, broadcast or otherwise
transmitted for the enjoyment of members of the public there assembled.
     (5) “Royalty” or “royalties” means the
fees payable to a copyright owner or performing rights society for the public
performance of nondramatic musical works or other similar works. [1997 c.236 §1]
     Note: 647.700 to 647.730 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
647 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     647.705
Requirements for performing rights societies. A performing rights society shall not enter into, or offer to enter
into, a contract for the payment of royalties by a proprietor unless the
performing rights society agrees to provide to the proprietor upon request at
the proprietorÂ’s place of business, by electronic means or otherwise:
     (1) Information as to whether specific
copyrighted musical works are in the repertoire of the performing rights
society;
     (2) The opportunity to review the most
current available list of the performing rights societyÂ’s members or
affiliates; and
     (3) The schedule of rates and terms of the
royalties to be collected under the contract, including any sliding scale or
schedule for any increase or decrease of the rates for the duration of the
contract. [1997 c.236 §2]
     Note: See note under 647.700.
     647.710
Requirements for contracts for payment of royalties. Every contract for the payment of royalties
between a proprietor and a performing rights society executed, issued or
renewed in this state shall be:
     (1) In writing;
     (2) Signed by the parties; and
     (3) Written to include, at a minimum, the
following information:
     (a) The proprietor’s name and business
address and the name and location of each place of business to which the
contract applies;
     (b) The name of the performing rights
society;
     (c) The duration of the contract; and
     (d) The schedule of rates and terms of the
royalties to be collected under the contract, including any sliding scale or
schedule for any increase or decrease of the rates for the duration of the
contract. [1997 c.236 §3]
     Note: See note under 647.700.
     647.715
Prohibited conduct. (1) A
performing rights society or any agent or employee thereof shall not:
     (a) Enter onto the premises of a
proprietorÂ’s business for the purpose of discussing or inquiring about a
contract for the payment of royalties with the proprietor or the proprietorÂ’s
employees, without first providing identification to the proprietor or the
proprietorÂ’s employees and making known to them the purpose of the discussion
or inquiry;
     (b) Engage in any coercive conduct, act or
practice that is substantially disruptive to a proprietorÂ’s business;
     (c) Use or attempt to use any unfair or
deceptive act or practice in negotiating with a proprietor; or
     (d) Fail to comply with or fulfill the
obligations imposed by ORS 647.705 and 647.710.
     (2) Nothing in ORS 647.700 to 647.730
shall be construed to prohibit a performing rights society from conducting
investigations to determine the existence of music use by a proprietor or
informing a proprietor of the proprietorÂ’s obligation under the copyright laws
of the United States pursuant to title 17 of the United States Code (P.L.
94-553, 17 U.S.C. 101 et seq.). [1997 c.236 §4]
     Note: See note under 647.700.
     647.720
Action for damages; injunction.
In the event of a violation of ORS 647.705, 647.710 or 647.715, any person may
bring an action to recover actual damages and reasonable attorney fees or seek
an injunction or any other remedy available at law or in equity. [1997 c.236 §5]
     Note: See note under 647.700.
     647.725
Relationship to other laws.
The rights, remedies and prohibitions contained in ORS 647.700 to 647.730 shall
be in addition to and cumulative to any other right, remedy or prohibition
accorded by common law, federal law or the statutes of this state, and nothing
contained in ORS 647.700 to 647.730 shall be construed to deny, abrogate or
impair any common law or statutory right, remedy or prohibition. [1997 c.236 §6]
     Note: See note under 647.700.
     647.730
Applicability of ORS 647.700 to 647.730. ORS 647.700 to 647.730 do not apply to contracts between copyright
owners or performing rights societies and broadcasters licensed by the Federal
Communications Commission or to contracts with cable television operators,
cable television programmers or other similar transmission services. ORS
647.700 to 647.730 do not apply to musical works performed in synchronization
with an audiovisual film or tape. [1997 c.236 §7]
     Note: See note under 647.700.
     647.990 [Repealed by 1961 c.497 §16]
     647.991 [1985 c.566 §7; repealed by 1999 c.722 §9]
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