Remedies for infringement




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44145144-1451.  Remedies for infringement

A.  Subject to section 44-1452, the owner of a mark registered under this article may proceed by civil action against any person who, without the consent of the registrant:

1.  Uses in this state the registered mark or a mark similar to the registered mark on or in connection with any goods or services or any container for goods in any manner that is likely to cause confusion, cause a mistake or deceive a person as to either:

(a)  The affiliation, connection or association of the person with another person.

(b)  The origin, sponsorship or approval of the goods, services or commercial activities by the owner of the registered mark.

2.  Reproduces, counterfeits, copies or colorably imitates a registered mark in any manner whatsoever if such reproductions, counterfeits, copies or colorable imitations are for usage in contravention of paragraph 1 of this subsection.

3.  Distributes or uses an unauthorized copy of computer software if the person knows that the copy is an unauthorized copy and when used the copy depicts, incorporates or displays or causes to be depicted, incorporated or displayed a mark that has been registered under this article for computer software.  Unauthorized distribution or use is deemed to cause injury in this state.

4.  Knowingly obliterates, covers, removes or otherwise alters the mark of another person.

B.  In any such action, the court:

1.  May grant injunctions to restrain any of such acts as the court deems just and reasonable.

2.  May also require the defendant to pay to the plaintiff, subject to the principles of equity:

(a)  The defendant's profits.

(b)  Any damages sustained by the plaintiff.

(c)  The costs of the action, provided that no profits or damages shall be awarded in the case of an action brought under subsection A, paragraph 2 of this section, unless the acts were committed with knowledge that the usage would be in contravention of subsection A, paragraph 1 of this section.

3.  If the use is a nonpersonal, commercial use, shall grant to a prevailing plaintiff in an action brought under subsection A, paragraph 3 of this section the plaintiff's reasonable attorney fees and, at the plaintiff's election and in lieu of the defendant's profits or actual damages, presumed damages that are equal to five hundred dollars for each copy or the manufacturer's suggested retail price for each copy, whichever is greater.

4.  If the use is a personal, noncommercial use, may grant to a prevailing plaintiff in an action brought under this section the plaintiff's reasonable attorney fees and, at the plaintiff's election and in lieu of the defendant's profits or actual damages, presumed damages that are equal to five hundred dollars for each copy or the manufacturer's suggested retail price for each copy, whichever is greater.

5.  May also order the cancellation or transfer of a registration or that any reproductions, copies, counterfeits, or colorable imitations of the registered mark in the possession or under the control of the defendant be destroyed or delivered for destruction.

6.  May also order the confiscation or destruction of any unauthorized copy of computer software that when used depicts or displays or causes to be depicted or displayed a registered mark.



C.  The enumeration of any right or remedy provided in this article shall not affect a registrant's right to prosecution under any penal law of this state. 441451



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