[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10550 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 10550
To amend the Trademark Act of 1946 to clarify the applicability of
Federal trademark law in the area of digital replicas of identifying
characteristics of individuals, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 20, 2024
Mr. Issa (for himself, Mr. Obernolte, and Mr. Cline) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Trademark Act of 1946 to clarify the applicability of
Federal trademark law in the area of digital replicas of identifying
characteristics of individuals, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Abuse of Digital Replicas
Act''.
SEC. 2. APPLICABILITY OF FEDERAL TRADEMARK LAW IN THE AREA OF DIGITAL
REPLICAS OF IDENTIFYING CHARACTERISTICS OF INDIVIDUALS.
(a) In General.--Section 43 of the Trademark Act of 1946 (15 U.S.C.
1125) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``or device,''
and inserting ``device, or digital replica,''; and
(B) by adding at the end the following:
``(4) In a civil action brought pursuant to paragraph (1)(A) for
the use of a digital replica by a person on or in connection with any
goods or services, or any container for goods there shall be a
rebuttable presumption that such use is likely to cause confusion, or
to cause mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or commercial
activities by another person.
``(5) A person shall not be liable in a civil action brought
pursuant to paragraph (1)(A) for the use of a digital replica on or in
connection with any goods or services, or any container for goods if
such use is--
``(A) for bona fide news, public affairs, or sports
broadcast or account, or any portion thereof;
``(B) for bona fide commentary, criticism, satire, or
parody, or any portion thereof;
``(C) for bona fide scholarship or educational purposes;
``(D) a creative work, the character and purpose of which
is primarily expressive or artistic in nature rather than
commercial, or any portion thereof;
``(E) otherwise protected by the First Amendment to the
Constitution of the United States; or
``(F) any combination of the above.
``(6) With the exception of relief sought under sections 32 and
43(c) of this Act, section 501 of title 17, and section 271 of title
35, a person may not seek relief under any other provision of Federal,
State, local, or municipal law for any use of a digital replica for
which the person files a civil action asserting liability under this
section and relies upon the rebuttable presumption in paragraph (4) in
a pleading, dispositive motion, response to a dispositive motion, or at
trial on the merits; and
``(7) This subsection shall be considered a law pertaining to
intellectual property for the purposes of section 230(e) of the
Communications Act of 1934 (47 U.S.C. 230).
``(8) In this subsection--
``(A) the term `digital replica' means computer-generated
representation of an identifying characteristic of a subject
person, who at the time of the use of the representation is a
living individual human being, where--
``(i) the identifying characteristic is an image,
voice, likeness, or other characteristic of the subject
person, or a characteristic of the creative works of
the subject person, that is distinctive to the subject
person such that the use of such characteristic is
likely to be associated with the subject person and no
other person by reasonable and ordinary participants in
the relevant industry or market;
``(ii) the representation is identical with, or
substantially indistinguishable from, the actual
identifying characteristic of the subject person from
the perspective of reasonable and ordinary participants
in the relevant industry or market; and
``(iii) based on the representation itself, it is
apparent to reasonable and ordinary participants in the
relevant industry or market that the purpose of the
representation, in whole or in part, was to duplicate
the identifying characteristic of the subject person;
and
``(B) the term ``relevant industry or market'' means the
industry or market for the goods or services that are the
subject of the civil action brought pursuant to paragraph
(1)(A).''.
(b) Rule of Construction.--Nothing in this Act, or the amendments
made by this Act, may be construed so as to limit the scope of section
43 of the Trademark Act of 1946 (15 U.S.C. 1125) as such section
existed prior to the enactment of this Act.
(c) Application.--This Act, and the amendments made by this Act,
shall apply only to a civil action--
(1) brought pursuant to section 43(a) of the Trademark Act
of 1946 after the date of the enactment of this Act; and
(2) for the use of a digital replica on or in connection
with any goods or services, or any container for goods, after
the date of the enactment of this Act.
(d) Severability.--If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the remainder
of the Act, and the application of such provision to other persons or
circumstances shall not be affected thereby.
(e) Definition.--In this section, the term ``Trademark Act of
1946'' means the Act entitled ``An Act to provide for the registration
and protection of trademarks used in commerce, to carry out the
provisions of certain international conventions, and for other
purposes'', approved July 5, 1946.
<all>