Advanced Copyright Law on the Internet

third notice elements enumerated above. Under Section 1307, omission of the notice does not
invalidate protection, but prevents any recovery of damages against an infringer until the
infringer has notice of the design rights, and no injunction may issue against such infringer
unless the owner reimburses the infringer for any reasonable expenditure or contractual
obligation incurred before receiving notice.

(6) Rights of a Design Owner and Limitations

Under Section 1308, the owner of a protected design has the exclusive right to make,
have made, or import, for sale or for use in trade, any useful article embodying the design, and to
sell or distribute for sale or for use in trade any useful article embodying the design. Section
1309 places a number of limitations on who may be deemed infringers, however:

-- First, under Section 1309(b), a seller or distributor who did not make or import

an infringing article is itself deemed an infringer only if (i) the seller or distributor

induced or acted in collusion with a manufacturer or importer (other than by

merely placing an order for the infringing articles) or (ii) failed to make a prompt

and full disclosure of its source of the infringing article upon request of the design

owner, and the seller or distributor orders or reorders the infringing articles after

receiving notice by registered or certified mail that the design is protected.

-- Second, a person who makes, has made, imports, sells or distributes an article

embodying an infringing design which was created without such person’s

knowledge that the design was protected and was copied from the protected

design.

-- Third, a person who incorporates into that person’s product of manufacture an

infringing article acquired from another in the ordinary course of business or who,

without knowledge of the protected design embodied in an infringing article,

makes or processes the infringing article for the account of another in the ordinary

course of business, is not an infringer, except to the extent such person would be

deemed an infringer under the seller/distributor provisions above.

(7) Standard of Infringement

Under Section 1309(a), to establish infringement, a design owner must prove that an
“infringing article” has been made, imported, sold or distributed without the design owner’s
consent. Section 1309(e) defines an “infringing article” as one embodying a design that was
“copied” from a protected design, and provides that an infringing article “is not an illustration or
picture of a protected design in an advertisement, book, periodical, newspaper, photograph,
broadcast, motion picture, or similar medium.” The statute does not directly define what it
means to “copy” a design. However, Section 1309(e) provides, “A design shall not be deemed to
have been copied from a protected design if it is original and not substantially similar in