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be had unless the proprietor of the design shall reimburse said person for any reasonable expenditure or contractual obligation in connection with such undertaking taking incurred before written notice of design protection, as the court in its discretion shall direct. The burden of proving written notice shall be on the proprieter.
infringement
Sec. 208. (a) It shall be infringement of a design protected under this title for any person, without the consent of the proprietor of the design, within the United States or its territories or possessions and during the term. of such protection to—
- (1) make, have made, or import, for sale or for use in trade, any infringing article as defined in subsection (d) hereof; or
- (2) sell or distribute for sale or for use in trade any such infringing article: Provided, however, That a seller or distributor of any such article who did not make or import the same shall be deemed to be an infringer only if—
- (i) he induced or acted in collusion with a manufacturer to make, or an importer to import such article (merely purchasing or giving an order to purchase in the ordinary course of business shall not of itself constitute such inducement or collusion); or
- (ii) he refuses or fails upon the request of the proprietor of the design to make a prompt and full disclosure of his source of such article, and he orders or reorders such article after having received notice by registered or certified mail of the protection subsisting in the design.
(b) It shall be not infringement to make, have made, import, sell, or distribute, any article embodying a design created without knowledge of, and copying from, a protected design.
(c) A person who incorporates into his own product of manufacture an infringing article acquired from others in the ordinary course of business, or who, without knowledge of the protected design, makes or processes an infringing article for the account of another person in the ordinary course of business, shall not be deemed an infringer except under the conditions of clauses (i) and (ii) of paragraph (a)(2) of this section. Accepting an order or reorder from. the source of the infringing article shall be deemed ordering or reordering within the meaning of clause (ii) of paragraph (a)(2) of this section.
(d) An “infringing article” as used herein is any article, the design of which has been copied from the protected design, without the consent of the proprietor: Provided, however, That an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium shall not be deemed to be an infringing article. An article is not an infringing article if it embodies, in common with the protected design, only element described in subsection (a) through (d) of section 202.
(e) The party alleging rights in a design in any action or proceeding shall have the burden of affirmatively establishing its originality when ever the opposing party introduces an earlier work which is identical to such design, or so similar as to make a prima facie showing that such design was copied from such Work.
application for registration
Sec. 209. (a) Protection under this title shall be lost if application for registration of the design is not made within six months after the date on which the design was first made public.
(b) A design is made public when, by the proprietor of the design or with his consent, an existing useful article embodying the design is anywhere publicly exhibited, publicly distributed, or ordered for sale or sold to the public.
(c) Application for registration or renewal may be made by the proprietor of the design.
(d) The application for registration shall be made to the Administrator and shall state (1) the name and address of the author or authors of the design; (2) the name and address of the proprietor if different from the author; (3) the specific name of the article, indicating its utility; and (4) such other information as may be required by the Administrator. The application for registration may include a description setting forth the salient features of the design, but the absence of such a description shall not prevent registration under this title.
