PRINTER'S NO. 3573
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2879
Session of
2022
INTRODUCED BY RABB, MADDEN, HOHENSTEIN, HILL-EVANS, SANCHEZ AND
KIM, OCTOBER 20, 2022
REFERRED TO COMMITTEE ON COMMERCE, OCTOBER 20, 2022
AN ACT
Amending Title 54 (Names) of the Pennsylvania Consolidated
Statutes, in trademarks, further providing for definitions,
providing for Native American trademarks, establishing the
Native American Trademarks Fund and providing for
administration of Native American trademarks and cancellation
of certain trademarks.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1102 of Title 54 of the Pennsylvania
Consolidated Statutes is amended by adding a definition to read:
§ 1102. Definitions.
The following words and phrases when used in this chapter
shall have, unless the context clearly indicates otherwise, the
meanings given to them in this section:
* * *
"Senior user." The oldest or original user of a mark,
trademark, trade name or service mark.
* * *
Section 2. Title 54 is amended by adding sections to read:
§ 1127. Native American trademarks.
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(a) General rule.--Native American names and use of
likenesses shall be considered subject to trademark and
registered by the department as trademarks. These shall include:
(1) Names of Native American nations, tribes, clans,
bands and other collective names for groups of Native
Americans, including the anglicized and original names in the
group's native language.
(2) Identifiers for Native American groups, such as
tribal insignias, flags, emblems or tribal-identifying fabric
patterns.
(3) Symbols, mascots, logos or other depictions of
Native American culture for which Native Americans have
established and traditionally used, including ritual pipes,
weapons, headdresses, clothing, medicine and other cultural
signifiers.
(b) Ownership.--Ownership of the trademarks described in
subsection (a) shall be as follows:
(1) For identifiers associated with a specific nation,
tribe or other collective Native American group, trademark
rights shall be reserved to and considered the exclusive
property of the federally recognized organization
representing that Native American group. The department shall
contact the specific nation, tribe or other collective Native
American group to inform them of the ownership of trademarks
and their rights in this Commonwealth.
(2) For identifiers not associated with a specific
nation, tribe or other collective Native American group,
trademark rights shall be reserved in trust by the department
to and considered the exclusive property of the department,
on behalf of the Commonwealth.
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(3) Identifiers that have not previously been associated
or claimed by a specific nation, tribe or other collective
Native American group, but which are later claimed by a
specific nation, tribe or other collective Native American
group shall be reviewed by the department, upon the request
of any person or the specific nation, tribe or other
collective Native American group. If the claim is approved by
the department, the department shall award the trademark to
the person or the specific nation, tribe or other collective
Native American group.
(c) Restriction on commercial use.--The commercial use of a
Native American trademark shall be restricted to the owner of
the registered trademark or person that obtains the owner's
consent for its commercial use. Failure to obtain consent for
the use of the trademark shall be considered improper use of the
trademark and may be remedied by an action authorized in this
chapter.
(d) Senior users under common law trademarks.--In a case in
which a Native American symbol or other identifier in use has
been recognized as a common law trademark, the Native American
group shall be considered the senior user of the trademark
unless the department determines that the name or other
identifier was not in use by members of the Native American
group before August 27, 1935.
(e) Nature of trademark recognized by department.--A Native
American trademark recognized by the department as registered or
common law trademarks shall not be considered abandoned, diluted
or generic.
(f) Department authorized to enter into agreements relating
to commercial use.--The department may enter into agreements for
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the commercial use of Native American trademarks, including the
use of likenesses, for trademarks it holds in trust and that are
not subject to ownership assessment under this chapter.
(g) Fees authorized.--The department shall charge a fee to
non-Native American commercial users for their use of Native
American trademarks held in trust by the department, on behalf
of the Commonwealth under this chapter. The department shall by
rule or regulation prescribe the amount of the fee.
§ 1128. Native American Trademarks Fund.
(a) Establishment.--The Native American Trademarks Fund is
established in the State Treasury.
(b) Deposit.--The department shall deposit into the fund any
fee or other financial benefit received by the Commonwealth from
Native American trademarks held in trust under this chapter.
(c) Use of fund.--The money of the fund is appropriated to
the department on a continuing basis and shall be used for the
purpose of supporting cultural and educational initiatives that
benefit Native American communities in this Commonwealth.
§ 1129. Administrative powers and duties relating to Native
American trademarks.
(a) Department.--The department shall have the following
powers and duties to administer the provisions of section 1127
(relating to Native American trademarks):
(1) Assess all applications by Native American nations,
tribes and other collective Native American groups for
ownership of trademarks qualifying under this chapter.
(2) Make available a process by which Native American
groups may lay claim to, contest or otherwise assert
ownership over trademarks held in trust by the department on
behalf of the Commonwealth.
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(3) Arbitrate any disagreement or dispute over the
ownership of Native American trademarks, including those held
in trust under section 1127.
(4) Reject any trademark application that depicts or
relates to a derogatory Native American stereotype, including
name, logo or symbol.
(b) Attorney General.--The Office of the Attorney General
may seek remedies as described in section 1125 (relating to
remedies) on behalf of unclaimed or unattributed Native American
common law trademarks recognized under section 1126 (relating to
common law rights). Any damages recovered shall be deposited
into the Native American Trademarks Fund.
(c) Judicial consideration.--The courts of this Commonwealth
shall give Native American groups due consideration as the
senior user of common law trademarks depicting names, logos,
symbols or other cultural artifacts associated with their
respective group.
§ 1130. Cancellation of marks.
(a) Duty of department.--The department shall cancel all
trademarks described under section 1127(a) (relating to Native
American trademarks) that exist prior to the effective date of
this section unless the trademarks are held by or registered to
a group formally representing a Native American group. Current
trademark owners shall be given not more than one year to
negotiate the continued commercial use of Native American
trademarks with the department.
(b) Notice.--The department shall issue a formal notice of
cancellation to the registered owners of trademarks canceled
under this section.
Section 3. This act shall take effect in 60 days.
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