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2008 SESSION
080913464Be it enacted by the General Assembly of Virginia:
1. That §§ 59.1-92.2, 59.1-92.12, and 59.1-92.13 of the Code of Virginia are amended and reenacted as follows:
§ 59.1-92.2. Definitions.
As used in this chapter, the following words shall have the following meanings:
"Abandoned" means either (i) the discontinuance of use of a mark with intent not to resume such use ("intent not to resume" may be inferred from circumstances, i.e., nonuse for three consecutive years shall constitute prima facie evidence of abandonment) or (ii) any course of conduct of the owner, including acts of omission as well as commission, which causes the mark to lose its significance as a mark.
"Applicant" means any person filing an application for registration of a mark under this chapter, and the legal representatives, successors, or assigns of such person.
"Commission" means the State Corporation Commission.
"Mark" means any trademark or service mark registered in the Commonwealth or the United States Patent and Trademark Office, or entitled to registration under this chapter, whether registered or not.
"Registrant" means any person to whom the registration of a mark under this chapter or prior law is issued, and the legal representatives, successors, or assigns of such person.
"Service mark" means any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the services of such person from the services of others.
"Trade name" means any name used by a person to identify a business or enterprise.
"Trademark" means any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the goods of such person from those manufactured or sold by others.
"Use" 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 the
purposes of this chapter, a mark shall be deemed to be in use (i) 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, or if the nature
of the goods makes such placement impracticable, then on documents associated
with the goods or their sale, and the goods are sold or otherwise distributed
in commerce in this the Commonwealth, and (ii) in connection with
services when it is used or displayed in the course of selling or providing
services in this the Commonwealth, or advertising descriptive of
services available within this the Commonwealth that is
communicated within or into this the Commonwealth.
§ 59.1-92.12. Infringement.
Subject to the provisions of § 59.1-92.15, any person who:
1. Uses in this Commonwealth in a manner likely to
cause confusion, mistake, or deception as to the source or origin of any goods
or services, without the consent of the registrant, any reproduction,
counterfeit, copy, or colorable imitation of a registered mark
registered under this chapter or prior law in connection with the sale,
offering for sale, distribution, or advertising of any with the intent
to sell or advertise for sale such 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 or origin of such goods or services; or
2. Reproduces, counterfeits, copies or colorably imitates a
registered mark and applies such reproduction, counterfeit, copy or colorable
imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements
intended to be used in this Commonwealth in connection with the sale, offering
for sale, distribution, or advertising of any, or any item, in a manner
likely to cause confusion, mistake, or deception as to the source or origin of
goods or services on or in connection with which such use is likely to cause
confusion or mistake or to deceive, with the intent to sell or advertise
for sale such goods or services, shall be liable in a civil action by the
registrant for any and all of the remedies provided in § 59.1-92.13, except
that under this subdivision the registrant shall not be entitled to recover
profits, damages, or attorneys' fees unless the acts have been committed with
knowledge that such mark is intended to be used to cause confusion or,
mistake, or to deceive deception.
§ 59.1-92.13. Remedies and penalties.
A. Any registrant of a mark in force and effect may proceed by
suit in a court of competent jurisdiction to enjoin violations of § 59.1-92.12
and/or seek such other remedies as are set forth herein. Any court of competent
jurisdiction may grant such injunctions as may by the court be deemed just and
reasonable to restrain such violations, and may require any defendant to pay to
such registrant all profits derived from and/or all damages suffered by reason
of such violations. The court may shall also order that any
material that violates § 59.1-92.12 that is in the possession or under the
control of any defendant in such case be destroyed, or delivered to an
officer of the court or to the registrant for destruction or alternatively
disposed of in another manner with the written consent of the registrant.
The court, in its discretion upon consideration of the circumstances of the
case, may award reasonable attorneys' fees to the prevailing party.
B. Any person who knowingly :
1. Knowingly and intentionally violates the provisions
of § 59.1-92.12 shall be is guilty of a Class 2 1
misdemeanor and, upon a second or subsequent conviction, shall be is guilty
of a Class 6 felony.
2. Knowingly and intentionally violates the provisions of § 59.1-92.12 and possesses 100 or more identical counterfeit registered marks or possesses such items valued at $200 or more, is guilty of a Class 6 felony.
C. Property subject to lawful seizure by any officer charged with enforcing this chapter shall include any article bearing or consisting of a registered counterfeit mark used in violation of this chapter, any property used in the substantial connection with or intended for use in the course of a violation of this chapter, or any interest or profits substantially connected to a violation of this chapter. Forfeiture, seizure, and disposition of such property shall be in accordance with Chapter 22 (§ 19.2-369 et seq.) of Title 19.2.
D. In any proceeding under this chapter, any certificate of registration issued by the Commonwealth or the United States Patent and Trademark Office shall be prima facie evidence of the facts stated therein.
2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.