7 U.S.C. § 2568 — False marking; cease and desist orders

Page 1511 TITLE 7—AGRICULTURE § 2568 ther event the court may increase the damages up to three times the amount determined. (c) The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the cir- cumstances. (d) As to infringement prior to, or resulting from a planting prior to, issuance of a certifi- cate for the infringed variety, a court finding the infringer to have established innocent inten- tions, shall have discretion as to awarding dam- ages. (Pub. L. 91–577, title III, § 124, Dec. 24, 1970, 84 Stat. 1556.) § 2565. Attorney fees The court in exceptional cases may award rea- sonable attorney fees to the prevailing party. (Pub. L. 91–577, title III, § 125, Dec. 24, 1970, 84 Stat. 1556.) § 2566. Time limitation on damages (a) No recovery shall be had for that part of any infringement committed more than six years (or known to the owner more than one year) prior to the filing of the complaint or counterclaim for infringement in the action. (b) In the case of claims against the United States Government for unauthorized use of a protected variety, the period between the date of receipt of written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that the claim has been denied shall not be counted as part of the period re- ferred to in the preceding paragraph. (Pub. L. 91–577, title III, § 126, Dec. 24, 1970, 84 Stat. 1556; Pub. L. 103–349, § 13(u), Oct. 6, 1994, 108 Stat. 3144.) Editorial Notes AMENDMENTS 1994—Subsec. (b). Pub. L. 103–349 substituted ‘‘the’’ for ‘‘his’’ before ‘‘claim has been denied’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–349 effective 180 days after Oct. 6, 1994, see section 15 of Pub. L. 103–349, set out as a note under section 2401 of this title. § 2567. Limitation of damages; marking and no- tice Owners may give notice to the public by phys- ically associating with or affixing to the con- tainer of seed of a variety or by fixing to the va- riety, a label containing either the words ‘‘Un- authorized Propagation Prohibited’’ or the words ‘‘Unauthorized Seed Multiplication Pro- hibited’’ and after the certificate issues, such additional words as ‘‘U.S. Protected Variety’’. In the event the variety is distributed by author- ization of the owner and is received by the in- fringer without such marking, no damages shall be recovered against such infringer by the owner in any action for infringement, unless the in- fringer has actual notice or knowledge that propagation is prohibited or that the variety is a protected variety, in which event damages may be recovered only for infringement occur- ring after such notice. As to both damages and injunction, a court shall have discretion to be lenient as to disposal of materials acquired in good faith by acts prior to such notice. (Pub. L. 91–577, title III, § 127, Dec. 24, 1970, 84 Stat. 1557; Pub. L. 96–574, § 19(b), Dec. 22, 1980, 94 Stat. 3351; Pub. L. 103–349, § 11, Oct. 6, 1994, 108 Stat. 3142.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–349 in first sentence struck out ‘‘novel’’ before ‘‘variety or’’ and before ‘‘variety, a’’, and in second sentence struck out ‘‘novel’’ before ‘‘vari- ety is distributed’’. 1980—Pub. L. 96–574 substituted ‘‘either the words ‘Unauthorized Propagation Prohibited’ or the words ‘Unauthorized Seed Multiplication Prohibited’ ’’ for ‘‘the words ‘Propagation Prohibited’ ’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–349 effective 180 days after Oct. 6, 1994, see section 15 of Pub. L. 103–349, set out as a note under section 2401 of this title. § 2568. False marking; cease and desist orders (a) Each of the following acts, if performed in connection with the sale, offering for sale, or ad- vertising of sexually or asexually reproducible plant material or tubers or parts of tubers, is prohibited, and the Secretary may, if the Sec- retary determines after an opportunity for hear- ing that the act is being so performed, issue an order to cease and desist, said order being bind- ing unless appealed under section 2461 of this title: (1) Use of the words ‘‘U.S. Protected Vari- ety’’ or any word or number importing that the material is a variety protected under cer- tificate, when it is not. (2) Use of any wording importing that the material is a variety for which an application for plant variety protection is pending, when it is not. (3) Use of either the phrase ‘‘Unauthorized Propagation Prohibited’’ or ‘‘Unauthorized Seed Multiplication Prohibited’’ or similar phrase without reasonable basis. Any reason- able basis expires one year after the first sale of the variety except as justified thereafter by a pending application or a certificate still in force. (4) Failure to use the name of a variety for which a certificate of protection has been issued under this chapter, even after the expi- ration of the certificate, except that lawn, turf, or forage grass seed, or alfalfa or clover seed may be sold without a variety name un- less use of the name of a variety for which a certificate of protection has been issued under this chapter is required under State law. (b) Anyone convicted of violating a binding cease and desist order, or of performing any act prohibited in subsection (a) of this section for Page 1512 TITLE 7—AGRICULTURE § 2569 the purpose of deceiving the public, shall be fined not more than $10,000 and not less than $500. (c) Anyone whose business is damaged or is likely to be damaged by an act prohibited in subsection (a) of this section, or is subjected to competition in connection with which such act is performed, may have remedy by civil action. (Pub. L. 91–577, title III, § 128, Dec. 24, 1970, 84 Stat. 1557; Pub. L. 96–574, § 19(c), Dec. 22, 1980, 94 Stat. 3352; Pub. L. 103–349, §§ 12, 13(v), Oct. 6, 1994, 108 Stat. 3142, 3144; Pub. L. 115–334, title X, § 10108(d), Dec. 20, 2018, 132 Stat. 4906.) Editorial Notes AMENDMENTS 2018—Subsec. (a). Pub. L. 115–334 inserted ‘‘or asexually’’ after ‘‘sexually’’ in introductory provisions. 1994—Subsec. (a). Pub. L. 103–349 inserted ‘‘or tubers or parts of tubers’’ after ‘‘plant material’’ and sub- stituted ‘‘if the Secretary determines’’ for ‘‘if he deter- mines’’ in introductory provisions, and added par. (4). 1980—Subsec. (a)(3). Pub. L. 96–574 substituted provi- sions respecting prohibitions for use of phrases ‘‘Unau- thorized Propagation Prohibited’’ and ‘‘Unauthorized Seed Multiplication Prohibited’’ for provisions respect- ing prohibitions for use of phrase ‘‘propagation prohib- ited’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–349 effective 180 days after Oct. 6, 1994, see section 15 of Pub. L. 103–349, set out as a note under section 2401 of this title. § 2569. Nonresident proprietors; service and no- tice Every owner not residing in the United States may file in the Plant Variety Protection Office a written designation stating the name and ad- dress of a person residing within the United States on whom may be served process or notice of proceedings affecting the plant variety pro- tection or rights thereunder. If the person des- ignated cannot be found at the address given in the last designation, or if no person has been designated, the United States District Court for the District of Columbia shall have jurisdiction and summons shall be served by publication or otherwise as the court directs. The court shall have the same jurisdiction to take any action respecting the plant variety protection, or rights thereunder that it would have if the owner were personally within the jurisdiction of the court. (Pub. L. 91–577, title III, § 129, Dec. 24, 1970, 84 Stat. 1557.) § 2570. Liability of States, instrumentalities of States, and State officials for infringement of plant variety protection (a) Any State, any instrumentality of a State, and any officer or employee of a State or instru- mentality of a State acting in the official capac- ity of the officer or employee, shall not be im- mune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for infringement of plant variety protection under section 2541 of this title, or for any other viola- tion under this subchapter. (b) In a suit described in subsection (a) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same ex- tent as such remedies are available for such a violation in a suit against any private entity. Such remedies include damages, interest, costs, and treble damages under section 2564 of this title, and attorney fees under section 2565 of this title. (Pub. L. 91–577, title III, § 130, as added Pub. L. 102–560, § 3(b), Oct. 28, 1992, 106 Stat. 4231; amend- ed Pub. L. 103–349, § 13(w), Oct. 6, 1994, 108 Stat. 3144.) Editorial Notes AMENDMENTS 1994—Subsec. (a). Pub. L. 103–349 substituted ‘‘the of- ficial capacity of the officer or employee’’ for ‘‘his offi- cial capacity’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–349 effective 180 days after Oct. 6, 1994, see section 15 of Pub. L. 103–349, set out as a note under section 2401 of this title. EFFECTIVE DATE Section effective with respect to violations that occur on or after Oct. 28, 1992, see section 4 of Pub. L. 102–560, set out as an Effective Date of 1992 Amendment note under section 2541 of this title. PART M—INTENT AND SEVERABILITY § 2581. Intent It is the intent of Congress to provide the indi- cated protection for new varieties by exercise of any constitutional power needed for that end, so as to afford adequate encouragement for re- search, and for marketing when appropriate, to yield for the public the benefits of new varieties. Constitutional clauses 3 and 8 of article I, sec- tion 8 are both relied upon. (Pub. L. 91–577, title III, § 131, Dec. 24, 1970, 84 Stat. 1558.) § 2582. Severability If this chapter is held unconstitutional as to some provisions or circumstances, it shall re- main in force as to the remaining provisions and other circumstances. (Pub. L. 91–577, title III, § 132, Dec. 24, 1970, 84 Stat. 1558.) § 2583. Repealed. Pub. L. 96–574, § 20, Dec. 22, 1980, 94 Stat. 3352 Section, Pub. L. 91–577, title III, § 144, Dec. 24, 1970, 84 Stat. 1559, exempted certain plants from provisions of this chapter. CHAPTER 58—POTATO RESEARCH AND PROMOTION Sec. 2611. Congressional findings and declaration of pol- icy.