[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2173 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 2173
To amend the Trademark Act of 1946 to provide that the licensing of a
mark for use by a related company may not be construed as establishing
an employment relationship between the owner of the mark, or an
authorizing person, and either that related company or the employees of
that related company, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 22, 2023
Mr. King (for himself, Mr. Lankford, Mr. Manchin, Mr. Braun, Ms.
Sinema, Mr. Tillis, Mr. Cornyn, and Ms. Collins) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To amend the Trademark Act of 1946 to provide that the licensing of a
mark for use by a related company may not be construed as establishing
an employment relationship between the owner of the mark, or an
authorizing person, and either that related company or the employees of
that related company, 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 ``Trademark Licensing Protection Act
of 2023''.
SEC. 2. SAFE HARBOR.
Section 5 of 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 (commonly known as the ``Trademark
Act of 1946'') (15 U.S.C. 1055), is amended--
(1) in the first sentence, by striking ``Where a'' and
inserting the following:
``(a) In General.--Where a''; and
(2) by adding at the end the following:
``(b) Consistency in Use.--
``(1) Definitions.--In this subsection--
``(A) the term `authorizing person' means a person
that is authorized by the owner of a mark to license
that mark for use by a related company;
``(B) the term `communicate', with respect to
subparagraph (D)(i)(II), does not include any
communication related to a personnel or employment
policy or procedure;
``(C) the term `employment relationship' means any
type of joint employer relationship, single employer
relationship, or other employment-related status or
relationship;
``(D) the term `exercise control over the mark'--
``(i) includes, but is not limited to,
requiring a related company to--
``(I) complete training conducted
for the purpose of preserving or
enhancing goodwill, a reputation,
uniformity, or the expectation of the
public with respect to the nature and
quality of goods or services associated
with a mark; or
``(II) communicate with the owner
of a mark, or an authorizing person,
with respect to preserving or enhancing
goodwill, a reputation, uniformity, or
the expectation of the public with
respect to the nature and quality of
goods or services associated with a
mark; and
``(ii) does not include any personnel or
employment policy or procedure that is
communicated--
``(I) by--
``(aa) the owner of a mark;
or
``(bb) an authorizing
person; and
``(II) to--
``(aa) a related company
with respect to the mark; or
``(bb) any employee of a
related company described in
item (aa);
``(E) the term `franchise' means a franchise, as
defined--
``(i) in section 436.1(h) of title 16, Code
of Federal Regulations, as in effect on the
date of enactment of this subsection; or
``(ii) under an applicable State franchise
law;
``(F) the term `franchisee' means a franchisee, as
defined--
``(i) in section 436.1(i) of title 16, Code
of Federal Regulations, as in effect on the
date of enactment of this subsection; or
``(ii) under an applicable State franchise
law;
``(G) the term `franchisor' means a franchisor, as
defined--
``(i) in section 436.1(k) of title 16, Code
of Federal Regulations, as in effect on the
date of enactment of this subsection; or
``(ii) under an applicable State franchise
law; and
``(H) the term `personnel or employment policy or
procedure' means--
``(i) any contractually retained right of
the owner of a mark, or an authorizing person,
to directly control a related company's hiring,
promotion, firing, or discipline of the
employees of such related company;
``(ii) any contractually retained right of
the owner of a mark, or an authorizing person,
to directly control a related company's rates
of pay, including wages and fringe benefits;
``(iii) any contractually retained right of
the owner of a mark, or an authorizing person,
to directly control a related company's
assignment of employee work schedules;
``(iv) any contractually retained right of
the owner of a mark, or an authorizing person,
to directly control collective bargaining
procedures or labor relations; and
``(v) any contractually retained right of
the owner of a mark, or an authorizing person,
to directly supervise the employees of a
related company.
``(2) Applicability.--For the purposes of the National
Labor Relations Act (29 U.S.C. 151 et seq.) and the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.), none of the
following may be construed, alone or in combination with any
other factor, as establishing an employment relationship
between the owner of a mark that is a franchisor, or an
authorizing person that is a franchisor, and a related company
with respect to that franchisor, or the employees of that
related company:
``(A) The licensing of the mark for use by that
related company or the employees of that related
company.
``(B) Any exercise of control over the mark by that
owner or authorizing person, as applicable--
``(i) with respect to the use of the mark
by that related company or the employees of
that related company; and
``(ii) for the purpose of preserving or
enhancing goodwill, a reputation, uniformity,
or the expectation of the public with respect
to the nature and quality of goods or services
associated with the mark.''.
SEC. 3. APPLICABILITY.
This Act, and the amendments made by this Act, shall not apply to
any proceeding before the National Labor Relations Board that is
commenced before the date of enactment of this Act.
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