Senate Bill No. 45–Committee on Judiciary

 

CHAPTER..........

 

AN ACT relating to marks; providing remedies to the owner of a mark for the dilution of the mark; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

   Section 1. Chapter 600 of NRS is hereby amended by adding thereto a

 new section to read as follows:

   1.  Except as otherwise provided in subsection 4, the owner of a mark

 that is famous in this state may bring an action to enjoin commercial use

 of the mark by a person if such use:

   (a) Begins after the mark has become famous; and

   (b) Causes dilution of the mark.

   2.  In determining whether a mark is famous in this state, the court

 shall consider, without limitation, the following factors:

   (a) The degree of inherent or acquired distinctiveness of the mark in

 this state.

   (b) The duration and extent of use of the mark in connection with the

 goods and services with which the mark is used.

   (c) The duration and extent of advertisement and promotion of the

 mark in this state.

   (d) The geographical extent of the trading area in which the mark is

 used.

   (e) The channels of trade for the goods or services with which the

 mark is used.

   (f) The degree of recognition of the mark in the trading areas and

 channels of trade in this state used by the owner of the mark and the

 person against whom the injunction is sought.

   (g) The nature and extent of use of the same or similar mark by other

 persons.

   (h) Whether the mark is registered in this state or registered in the

 United States Patent and Trademark Office pursuant to federal law.

   3.  Except as otherwise provided in this subsection, the owner of a

 mark that is famous may obtain only injunctive relief in an action

 brought pursuant to this section. The owner of a mark that is famous is

 entitled to the remedies provided in NRS 600.430 if the person using the

 mark willfully intended to cause dilution of the mark or willfully

 intended to trade on the reputation of the owner of the mark.

   4.  The owner of a mark that is famous may not bring an action

 pursuant to this section for the fair use of the mark by another person in

 comparative commercial advertising or promotion to identify the

 competing goods or services of the owner of the mark.

   5.  As used in this section:

   (a) “Commercial use” means use of a mark primarily for profit. The

 term does not include use of a mark for research, criticism, news

 commentary, news reporting, teaching or any similar use that is not

 primarily for profit.

   (b) “Dilution” means a lessening in the capacity of a mark that is

famous to identify and distinguish goods or services, regardless of the

 presence or absence of:

     (1) Competition between the owner of the mark and other persons;

 or

     (2) Likelihood of confusion, mistake or deception as to the source

 of origin of goods or services.

   Sec. 2.  NRS 600.240 is hereby amended to read as follows:

   600.240  As used in NRS 600.240 to 600.450, inclusive, and section 1

 of this act, unless the context otherwise requires, the words and terms

 defined in NRS 600.250 to 600.320, inclusive, have the meanings ascribed

 to them in those sections.

 

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