A.R.S. tit. 44 ch. 10 — Arizona Revised Statutes Title 44 Chapter 10 — Competition And Competitive Practices

44-1401. Definition In this article, unless the context otherwise requires: "Person" means an individual, corporation, business trust, partnership, association or any other legal entity. 44-1402. Contract, combination or conspiracy to restrain or monopolize trade A contract, combination or conspiracy between two or more persons in restraint of, or to monopolize, trade or commerce, any part of which is within this state, is unlawful. 44-1403. Establishment, maintenance or use of monopoly The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this state, by any person for the purpose of excluding competition or controlling, fixing or maintaining prices is unlawful. 44-1404. Exclusions A. Labor of a human being is not a commodity or an article of commerce. B. This article shall not be construed to forbid the existence and operation of any labor, agricultural or horticultural organization instituted for the purpose of mutual help, while lawfully carrying out its legitimate objects. 44-1405. Judicial jurisdiction An action for violation of this article shall be brought in the superior court. 44-1406. Investigation; service of demand sanctions; confidentiality A. If the attorney general has reasonable cause to believe that a person has information or is in possession, custody or control of any document or other tangible object relevant to an investigation for a violation of this article, the attorney general may serve upon the person, before bringing any action in the superior court, a written demand to appear and be examined under oath, to answer written interrogatories under oath and to produce the document or object for inspection and copying. The demand shall: 1. Be served upon the person in the manner required for service of process in this state or by certified mail with return receipt requested. 2. Describe the nature of the conduct constituting the violation under investigation. 3. Describe the class or classes of documents or objects with sufficient definiteness to permit them to be fairly identified. 4. Contain a copy of the written interrogatories. 5. Prescribe a reasonable time at which the person must appear to testify, within which to answer the written interrogatories and within which the document or object must be produced, and advise the person that objections to or reasons for not complying with the demand may be filed with the attorney general on or before that time. 6. Specify a place for the taking of testimony or for production and designate a person who shall be custodian of the document or object. 7. Contain a copy of subsections B and C of this section. B. If a person objects to or otherwise fails to comply with the written demand served upon him under subsection A, the attorney general may file an action in the superior court for an order to enforce the demand. Venue for the action to enforce the demand shall be in the county in which the person resides or in which the person maintains a place of business or in which the event giving rise to jurisdiction occurred or in which the event had an effect. Notice of hearing the action to enforce the demand and a copy of the action shall be served upon the person in the same manner as that prescribed in the Arizona rules of civil procedure. If the court finds that the demand is proper, that there is reasonable cause to believe there may have been a violation of this article and that the information sought or document or object demanded is relevant to the violation, it shall order the person to comply with the demand, subject to modifications the court may prescribe. If the person fails to comply with such order, the court may issue any of the following orders until the person complies with such order: 1. Adjudging the person in contempt of court. 2. Granting injunctive relief against the person to whom the demand is issued to restrain the conduct which is the subject of the investigation. 3. Granting such other relief as the court may deem proper. C. The court may award to the attorney general taxable costs and reasonable attorney fees as determined by the court against the person failing to obey the order. Upon motion by the person and for good cause shown, the court may make any further order in the proceedings that justice requires to protect the person from unreasonable annoyance, embarrassment, oppression, burden or expense. D. If the attorney general determines that disclosure to the respondent of the evidence relied on to establish reasonable cause is not in the best interests of the investigation, he may request that the court examine the evidence in camera. If the attorney general makes this request, the court may examine the evidence in camera and then make its determination. E. Any procedure, testimony taken or material produced under this section shall be kept confidential by the attorney general before bringing an action against a person under this article for the violation under investigation unless any of the following applies: 1. Confidentiality is waived by the person whose testimony is disclosed. 2. Confidentiality is waived by the person who produced to the attorney general the material being disclosed. 3. The testimony or material is disclosed solely to the person, or the person's attorney, who testified or provided the material to the attorney general. 4. Disclosure is authorized by court order. F. The attorney general may disclose the testimony or material to a person employed by this state, the United States or any other state, if before disclosure to another state or the United States the receiving official agrees in writing to comply with the confidentiality restrictions of this section. G. An individual conducting an examination pursuant to this section may exclude from the place of examination any person, except the person being examined and the person's counsel. 44-1407. Civil penalty and injunctive enforcement The attorney general or a county attorney with the permission or at the request of the attorney general may bring an action for appropriate injunctive or other equitable relief and civil penalties and as determined by the court, taxable costs, such other fees and expenses reasonably incurred and reasonable attorney fees, in the name of the state for a violation of this article. The court may assess for the benefit of the state a civil penalty of not more than one hundred fifty thousand dollars for each violation of this article. 44-1408. Damages; injunctive relief A. The state, a political subdivision or any public agency threatened with injury or injured in its business or property by a violation of this article may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney's fees. B. A person threatened with injury or injured in his business or property by a violation of this article may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it shall increase recovery to an amount not in excess of three times the damages sustained. 44-1409. Judgment as prima facie evidence A final judgment or decree determining that a person has violated this article in an action brought by the state under section 44-1407 or 44-1408, subsection A, other than a consent judgment or decree entered before any testimony has been taken, is prima facie evidence against such person in any other action against him under section 44-1408 as to all matters with respect to which the judgment or decree would be an estoppel between the parties thereto. This section does not affect the application of collateral estoppel or issue preclusion. 44-1410. Limitations of actions A. An action under section 44-1407 to recover a civil penalty is barred if it is not commenced within four years after the cause of action accrues. B. An action under section 44-1408 to recover damages is barred if it is not commenced within four years after the cause of action accrues, or within one year after the conclusion of any timely action brought by the state under section 44-1407 or 44-1408, subsection A, based in whole or in part on any matter complained of in the action for damages, whichever is later. 44-1411. Remedies cumulative The remedies provided for in this article are cumulative. 44-1412. Uniformity This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states that enact it. It is the intent of the legislature that in construing this article, the courts may use as a guide interpretations given by the federal courts to comparable federal antitrust statutes. 44-1413. Short title This article may be cited as the uniform state antitrust act. 44-1414. Order compelling testimony or production of evidence; immunity; contempt A. In any proceeding or investigation under this article, if a person refuses to answer a question or produce evidence of any kind on the ground that he may be incriminated and if the attorney general or county attorney requests the court in writing to order the person to answer the question or produce the evidence, the court may make this order and the person shall comply with the order. If the court denies the request, the court shall state its reasons for denial in writing. After complying, the testimony or evidence, or any information directly or indirectly derived from the testimony or evidence, shall not be used against the person in any proceeding or prosecution for a crime or offense concerning which he gave an answer or produced evidence under the court order, except that immunity obtained pursuant to this section does not prevent or in any way affect the bringing of an action under section 44-1408. Immunity obtained pursuant to this section does not exempt any person from prosecution, penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. B. If a person refuses to testify after being granted immunity and after being ordered to testify as prescribed in subsection A of this section, he may be adjudged in contempt. 44-1415. Notice to attorney general; appearance A. A person filing a complaint, counterclaim or answer for any violation of the provisions of this article shall simultaneously with the filing of the pleading in the superior court or, in the case of pendent state law claims in the federal court, serve a copy of the complaint, counterclaim or answer on the attorney general. Proof of service on the attorney general shall be filed with the court. B. A person who commences, by special action or appeal, any proceeding in any state or federal appellate court in which a violation of this article is alleged or any application of this article appears to be in issue shall serve notice of the special action or appeal on the attorney general within three days after the commencement of the proceeding, provided that the time may be extended by leave of the court for good cause shown. C. The state may appear as amicus curiae in any civil action or proceeding pending before any Arizona court, agency, board or commission in which matters related to this article appear to be in issue. D. Service of any notice required under this section does not limit or otherwise affect the right of this state to maintain an action under this article or intervene in a pending action nor does it authorize the person to name this state or the attorney general as a party to the action. 44-1416. Government contract, combination or conspiracy to restrain trade or commerce; violation; classification A. A contract, combination or conspiracy in violation of section 44-1402 is per se unlawful if it involves: 1. A contract between a governmental agency and a person for the purchase of equipment, services, labor, goods, materials and commodities of any kind. 2. A subcontract with a contractor or proposed contractor for a governmental agency for the purchase of equipment, services, labor, goods, materials and commodities of any kind. B. This section does not prevent or limit a court in finding other conduct that violates section 44-1402 to be per se unlawful. C. A person who enters into a contract, combination, conspiracy or other act in violation of this section is guilty of a class 4 felony in addition to all other remedies provided by this chapter. 44-1421. Definitions In this article, unless the context otherwise requires: 1. "Assertion of patent infringement" means any of the following: (a) Sending or delivering a demand to a target. (b) Threatening a target with litigation and asserting or alleging that the target has engaged in patent infringement. (c) Sending or delivering a demand to the customers of a target. (d) Making assertions or allegations, other than those made in litigation against a target, that a target has engaged in patent infringement or that a target should obtain a license to a patent in order to avoid litigation. 2. "Claim" means the scope of the patent owner's exclusive rights to the use and control of the patent owner's invention. 3. "Demand" means a letter, an e-mail or any other communication asserting that a person has engaged in patent infringement or should obtain a license to a patent but does not include a petition filed in a court of competent jurisdiction. 4. "Person" means any individual, corporation, partnership, limited liability company, governmental entity, institution of higher education or other legal or commercial entity. 5. "Target" means any of the following: (a) A person that has received a demand or against whom an assertion of patent infringement has been made and who has information indicating the assertion was made in bad faith pursuant to section 44-1422. (b) A person that has been threatened with litigation or against whom a lawsuit has been filed alleging patent infringement and who has information indicating the assertion of patent infringement was made in bad faith pursuant to section 44-1422. 44-1422. Bad faith patent infringement claims; prohibited A. A person may not make an assertion of patent infringement in bad faith. A court may consider the following nonexclusive factors as evidence that a person has made an assertion of patent infringement in bad faith: 1. The demand does not contain all of the following: (a) The patent number issued by the United States patent and trademark office or foreign agency. (b) The name and address of the patent owner or assignee, if any. (c) Facts relating to the specific areas in which the target's product, service or technology infringes the patent or is covered by the claims in the patent. (d) An explanation of why the person making the assertion has standing, if the assignment system of the United States patent and trademark office does not identify the person asserting the patent infringement as the owner. 2. The target requested the information described in paragraph 1 of this subsection and the person failed to provide the information within a reasonable time. 3. Before making a demand, the person did not conduct an analysis comparing the claims in the patent to the target's product, service or technology or the analysis was conducted but does not identify specific areas in which the product, service or technology is covered by the claims in the patent. 4. The demand requested a response or payment of a licensing fee within an unreasonably short period of time. 5. The person making the assertion of patent infringement knew or should have known that the assertion is without merit. 6. The assertion of patent infringement contains false, misleading or deceptive information. 7. The person or a subsidiary or an affiliate of the person has previously filed or threatened to file one or more lawsuits based on the same or substantially equivalent assertion of patent infringement and a court found the person's assertion of patent infringement to be without merit. 8. Any other factor that the court determines to be relevant. B. A court may consider the following factors as evidence that a person has made an assertion of patent infringement in good faith: 1. If the demand does not contain the information prescribed in subsection A, paragraph 2 of this section, the person provides the information to the target within a reasonable period of time after the target requests the information. 2. The person has done all of the following: (a) Engaged in a reasonable analysis to establish a reasonable, good faith basis for believing the target has infringed the patent. (b) Attempted to negotiate an appropriate remedy in a reasonable manner. (c) Either: (i) Demonstrated reasonable business practices in previous efforts to enforce the patent. (ii) Successfully enforced the patent, or a substantially similar patent, through litigation. 3. The person has made a substantial investment in the use of the patent or in the production or sale of a product covered by the patent. 4. The person is either of the following: (a) An inventor of the patent or an original assignee. (b) An institution of higher education or a technology transfer organization affiliated with an institution of higher education. 5. Any other factor that the court determines to be relevant. C. Unless done in bad faith, this section may not be construed to deem it an unfair or a deceptive trade practice for any person who owns or has the right to license or enforce a patent to do any of the following: 1. Advise others of that ownership or right of license or enforcement. 2. Communicate to others that the patent is available for license or sale. 3. Notify another of the infringement of that patent pursuant to 35 United States Code section 287. 4. Seek compensation for a past or present infringement, or license to the patent, if it is reasonable to believe that the person from whom compensation is sought may owe the compensation or may need or want a license to practice the patent. 44-1423. Enforcement An act or practice in violation of this article is an unlawful practice under section 44-1522 and subject to enforcement through private action and prosecution by the attorney general. The attorney general may investigate and take appropriate action as prescribed by article 7 of this chapter. 44-1424. Federal patent infringement allegation exception A civil action that includes a demand or assertion of patent infringement that arises under 35 United States Code section 271(e)(2) or 42 United States Code section 262 is not subject to this article. 44-1441. Definitions A. In this article, unless the context otherwise requires: 1. "Applicant" means the person filing an application for registration of a mark under this article or the person's legal representatives, successors or assigns. 2. "Dilution" means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of either: (a) Competition between the owner of the famous mark and other parties. (b) Likelihood of confusion, mistake or deception. 3. "Mark" means any trademark or service mark. 4. "Person" means any individual, firm, partnership, corporation, association, union or other organization. 5. "Registrant" means the person to whom the registration of a mark under this article is issued or the person's legal representatives, successors or assigns. 6. "Service mark" means any word, name, symbol or device or any combination of these items that is adopted and used by a person to identify services provided or sold by that person and to distinguish the services from services provided or sold by others. 7. "Trademark" means any word, name, symbol or device or any combination of these items that is adopted and used by a person to identify goods made or sold by that person and to distinguish the goods from goods made or sold by others. 8. "Use" or "used" means the bona fide use of a mark in the ordinary course of trade and not made merely to reserve a right in a mark. B. A mark is in use: 1. On goods when it is placed in any manner on the goods or other containers or the displays associated with the goods or other containers or on the tags or labels affixed to the goods or other containers, or if the nature of the goods makes the placement impracticable, then on documents associated with the goods or their sale, and the goods are sold, transported or distributed in this state. 2. On services when it is used or displayed in the sale or advertising of services and the services are rendered in this state. C. A mark is abandoned if either of the following occurs: 1. Its use has been discontinued with intent not to resume the use. Intent not to resume may be inferred from circumstances. Nonuse for three consecutive years constitutes prima facie evidence of abandonment. 2. Any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark. 44-1442. Registrability A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it: 1. Consists of or comprises immoral, deceptive or scandalous matter. 2. Consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. 3. Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof. 4. Consists of or comprises the name, signature or portrait of any living individual, except with his written consent. 5. Consists of a mark which: (a) When used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them. (b) When used on or in connection with the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them. (c) Is primarily merely a surname, but nothing in this paragraph shall prevent the registration of a mark which has become distinctive of the applicant's goods or services in this state. The secretary of state may accept as prima facie evidence that a mark has become distinctive of the applicant's goods in this state proof of substantially exclusive and continuous use of such mark in this state by the applicant during the five-year period preceding the execution of the application for registration. 6. Consists of or comprises a mark that so resembles a mark registered in this state or a mark or trade name previously used in this state by another and not abandoned, and that when applied to the goods or services of the applicant, is likely to cause confusion or mistake or to deceive. 44-1443. Application for registration A. Subject to the limitations set forth in this article, any person who is domiciled in this state and who adopts and uses a trademark or service mark, or any person who adopts and uses a trademark or service mark in this state, may file in the office of the secretary of state, on a form to be furnished by the secretary of state, an application for registration of that mark setting forth at least the following information: 1. The name and email and business address of the person applying for such registration and, if a corporation, the state of incorporation. 2. The goods or services in connection with which the mark is used, the mode or manner in which the mark is used in connection with such goods or services and the class in which such goods or services fall. 3. The date when the mark was first used anywhere, and the date when the mark was first used in this state by the applicant or the applicant's predecessor in business. 4. A statement that the applicant is the owner of the mark and that no other person has the right to use the mark in this state either in the identical form of the mark or in such near resemblance to the mark as might be calculated to deceive or to be mistaken for the mark. 5. A statement that the applicant has conducted a search and found that the trademark or service mark does not consist of or comprise a mark that so resembles a mark registered in this state or a mark or trade name previously used in this state by another and not abandoned and that, when applied to the goods or services of the applicant, the mark is not likely to cause confusion or mistake or to deceive. 6. A statement whether the applicant previously sought to register the trademark or service mark with the United States patent and trademark office and, if so and the registration was denied, the reasons for the denial. B. The application shall be: 1. Signed by the applicant, or by a member of the firm or any officer of the corporation or association applying. 2. Accompanied by a specimen or facsimile of the mark in a format specified by the secretary of state by rule. 44-1443.01. Electronic filing; acceptance A. Any document that is required to be filed pursuant to this article may be filed in an electronic format that is approved by the secretary of state. B. Any document that is filed in accordance with this section is deemed to comply with: 1. The filing requirements of this article. 2. The requirement that a filing be verified or be submitted with a written signature. 3. Any requirement that the filing be filed under the penalty of perjury. C. The secretary of state may adopt rules requiring that any person that submits a document for filing pursuant to this section also submit a written or printed copy of the document as a prerequisite to the document being deemed filed. D. Except as provided in this section, all civil and criminal statutes applicable to the filing of paper documents apply to all documents filed pursuant to this section. 44-1444. Certificate of registration; admissibility as evidence A. Upon compliance by the applicant with the requirements of this article, the secretary of state shall cause a certificate of registration to be issued and delivered to the applicant. The certificate shall be issued under the signature of the secretary of state and the seal of the state, and it shall show: 1. The name and business address and, if a corporation, the state of incorporation, of the person claiming ownership of the mark. 2. The date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this state. 3. The class of goods or services and a description of the goods or services on which the mark is used. 4. A reproduction of the mark. 5. The registration date and the term of the registration. B. A certificate of registration issued by the secretary of state under the provisions of this article or a copy thereof duly certified by the secretary of state shall be admissible in evidence as competent and sufficient proof of the registration of such mark in any action or judicial proceedings in any court of competent jurisdiction in this state. 44-1445. Duration of registration; renewal notice; application and fee A. Registration of a mark under the provisions of this article shall be effective for a term of ten years from the date of registration. Upon application filed within six months prior to the expiration of such term, on a form to be furnished by the secretary of state, the registration may be renewed for a like term. A mark registration may be renewed for successive periods of ten years in a like manner. B. The secretary of state shall notify registrants of marks under this article of the necessity of renewal within the year next preceding the expiration of the ten years from the date of registration by writing to the last known address of the registrants. C. Any registered mark expires ten years from the date of the registration, or of the last reregistration thereof, and may be reregistered by filing an application with the secretary of state on a form furnished by the secretary of state and paying the renewal fee therefor within six months prior to the expiration of the registration. 44-1446. Assignment of mark and registration Any mark and its registration under the provisions of this article shall be assignable with the goodwill of the business in which the mark is used or with that part of the goodwill of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be recorded with the secretary of state who upon recording of the assignment shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last reregistration thereof. An assignment of any registration under this article shall be void as against any subsequent purchaser for valuable consideration without notice, unless it is recorded with the secretary of state within three months after the date thereof or prior to such subsequent purchase. 44-1447. Records The secretary of state shall keep for public examination a record of all marks registered or renewed under this article. 44-1448. Cancellation of registrations The secretary of state shall cancel from the register: 1. Any registration concerning which the secretary of state receives a voluntary request for cancellation thereof from the registrant or the assignee of record. 2. All registrations granted under this article and not reregistered in accordance with the provisions hereof. 3. Any registration concerning which a court of competent jurisdiction finds: (a) That the registered mark has been abandoned. (b) That the registrant is not the owner of the mark. (c) That the registration was granted improperly. (d) That the registration was obtained fraudulently. (e) That the registered mark is so similar to a mark registered by another person in the United States patent office, prior to the date of the filing of the application for registration by the registrant under this article, and not abandoned, that it might cause confusion or mistake, or a person to be deceived, but if the registrant proves that he is the owner of a concurrent registration of his mark in the United States patent office covering an area including this state, the registration under this article shall not be canceled. (f) That the mark is or has become the generic name for the goods or services, or a portion of the goods or services, for which it has been registered. 4. When a court of competent jurisdiction orders cancellation of a registration on any ground. 44-1448.01. Injury to business reputation; dilution A. The owner of a mark that is famous in this state shall be entitled, subject to the principles of equity and on terms as the court deems reasonable, to an injunction against another person's commercial use of a mark or trade name, if the use begins after the mark has become famous and causes dilution of the distinctive quality of the mark and to obtain other relief provided in this section. In determining whether a mark is distinctive and famous, a court may consider at least the following factors: 1. The degree of inherent or acquired distinctiveness of the mark in this state. 2. The duration and extent of use of the mark in connection with the goods and services with which the mark is used. 3. The duration and extent of advertising and publicity of the mark in this state. 4. The geographical extent of the trading area in which the mark is used. 5. The channels of trade for the goods or services with which the mark is used. 6. The degree of recognition of the mark in the trading areas and channels of trade in this state used by the mark's owner and the person against whom the injunction is sought. 7. The nature and extent of use of the same or similar mark by third parties. 8. Whether the mark is the subject of a state registration in this state or a federal registration under the act of March 3, 1881, or under the act of February 20, 1905, or on the principal register. B. In an action brought under this section, the owner of a famous mark is entitled only to injunctive relief in this state, unless the person against whom the injunctive relief is sought wilfully intended to trade on the owner's reputation or to cause dilution of the famous mark. If wilful intent is proven, the owner shall also be entitled to the remedies set forth in this chapter, subject to the discretion of the court and the principles of equity. C. The following are not actionable under this section: 1. Fair use of a mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. 2. Noncommercial use of the mark. 3. All forms of news reporting and news commentary. 44-1449. Classification of goods or services A single application for registration of a mark may include all goods and services on which the mark is actually being used in one or multiple classes. The following general classes of goods and services are established for convenience of administration of this article, but not to limit or extend the applicant's or registrant's rights: 1. Chemical products used in industry, science, photography, agriculture, horticulture or forestry; artificial and synthetic resins; plastics for industrial use in the form of powders, liquids or pastes; natural and artificial manures; fire extinguishing compositions; tempering substances and chemical preparations for soldering; chemical substances for preserving foodstuffs; tanning substances; adhesive substances used in industry. 2. Paints, varnishes and lacquers; preservatives against rust and against deterioration of wood; coloring matters and dyestuffs; mordants; natural resins; metals in foil and powder form for painters and decorators. 3. Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics and hair lotions; dentifrices. 4. Industrial oils and greases except oils and fats and essential oils; lubricants; dust laying and absorbing compositions; fuels, including motor spirit and illuminants; candles, tapers, night-lights and wicks. 5. Pharmaceutical, veterinary and sanitary substances; infants' and invalids' food; plasters and material for bandaging; material for stopping teeth, dental wax and disinfectants; preparations for killing weeds and destroying vermin. 6. Unwrought and partly wrought common metals and the metals' alloys; anchors, anvils, bells and rolled and cast building materials; rails and other metallic materials for railway tracks; chains, except driving chains for vehicles; nonelectric cables and wires; locksmiths' work; metallic pipes and tubes; safes and cash boxes; steel balls; horseshoes; nails and screws; other goods in nonprecious metal that are not included in other classes; ores. 7. Machines and machine tools; motors, except motors for land vehicles; machine couplings and belting, except couplings and belting for land vehicles; large size agricultural implements; incubators. 8. Hand tools and instruments; cutlery, forks and spoons; side arms. 9. Scientific, nautical, surveying and electrical apparatus and instruments, including wireless apparatus and instruments; photographic, cinematographic, optical, weighing, measuring, signaling, checking, supervision, life-saving and teaching apparatus and instruments; coin or counterfreed apparatus; talking machines; cash registers; calculating machines; fire extinguishing apparatus. 10. Surgical, medical, dental and veterinary instruments and apparatus, including artificial limbs, eyes and teeth. 11. Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes. 12. Vehicles; apparatus for locomotion by land, air or water. 13. Firearms; ammunition and projectiles; explosive substances; fireworks. 14. Precious metals and the metals' alloys; goods in precious metals or coated with precious metals, except cutlery, forks and spoons; jewelry and precious stones; horological and other chronometric instruments. 15. Musical instruments except talking machines and wireless apparatus. 16. Paper and paper articles and cardboard and cardboard articles; printed matters, newspapers and periodicals and books; bookbinding material; photographs; stationery and stationery adhesive materials; artists' materials; paintbrushes; typewriters and office requisites, except furniture; instructional and teaching material, except instructional and teaching apparatus; playing cards; printers' type and cliches or stereotype. 17. Gutta percha, India rubber, balata and substitutes and articles made from these substances and not included in other classes; plastics in the form of sheets, blocks and rods for use in manufacturing; materials for packing, stopping or insulating; asbestos, mica and asbestos or mica products; nonmetallic hose pipes. 18. Leather, imitations of leather and articles made from leather and imitations of leather that are not included in other classes; skins and hides; trunks and traveling bags; umbrellas, parasols and walking sticks; whips, harnesses and saddlery. 19. Building materials, natural and artificial stone, cement, lime, mortar, plaster and gravel; pipes of earthenware or cement; roadmaking materials; asphalt, pitch and bitumen; portable buildings; stone monuments; chimney pots. 20. Furniture, mirrors and picture frames; articles of wood, cork, reeds, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum or celluloid, substitutes for all of these materials, or of plastics and that are not included in other classes. 21. Small domestic utensils and containers, except utensils and containers of precious metals or utensils and containers coated with precious metals; combs and sponges; brushes, except paintbrushes; brushmaking materials; instruments and material for cleaning purposes and steel wool; unworked or semiworked glass, except glass used in building; glassware, porcelain and earthenware that is not included in other classes. 22. Ropes, string, nets, tents, awnings, tarpaulins, sails and sacks; padding and stuffing materials, including hair, kapok, feathers and seaweed; raw, fibrous textile materials. 23. Yarns and threads. 24. Tissues that are piece goods; bed and table covers; textile articles that are not included in other classes. 25. Clothing, including boots, shoes and slippers. 26. Lace, embroidery, ribands and braid; buttons, press buttons, hooks, eyes, pins and needles; artificial flowers. 27. Carpets, rugs, mats and matting; linoleums and other materials for covering existing floors; nontextile wall hangings. 28. Games and playthings; gymnastic and sporting articles, except gymnastic and sporting clothes; ornaments and decorations for Christmas trees. 29. Meats, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies and jams; eggs, milk and other dairy products; edible oils and fats; preserves and pickles. 30. Coffee, tea, cocoa, sugar, rice, tapioca, sago and coffee substitutes; flour and preparations made from cereals; bread, biscuits, cakes, pastry and confectionery; ices; honey and treacle; yeast and baking powder; salt, mustard, pepper, vinegar, sauces and spices. 31. Agricultural, horticultural and forestry products and grains that are not included in other classes; living animals; fresh fruits and vegetables; seeds; live plants and flowers; foodstuffs for animals; malt. 32. Beer, ale and porter; mineral waters, aerated waters and other nonalcoholic drinks; syrups and other preparations for making beverages. 33. Wines, spirits and liqueurs. 34. Raw or manufactured tobacco; smokers' articles; matches. 35. Computers and computer software. 36. Advertising and business. 37. Insurance and financial. 38. Construction and repair. 39. Communication. 40. Transportation and storage. 41. Material treatment. 42. Education and entertainment. 43. Miscellaneous. 44-1450. Fraudulent registration; damages Any person who for himself, or on behalf of any other person, procures the filing or registration of any mark in the office of the secretary of state under the provisions of this article by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction. 44-1451. 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. 44-1452. Common law rights Nothing in this article shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law. 44-1453. Counterfeit marks; violation; classification; presumption; seizure; forfeiture; remedies; definitions A. Except as provided in subsections B, C and D of this section, a person who knowingly and with intent to sell or distribute uses, displays, advertises, distributes, offers for sale, sells or possesses any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 1 misdemeanor. B. A person who commits any act proscribed in subsection A of this section is guilty of a class 6 felony if either: 1. The person has one previous conviction under this section. 2. At least one of the following is true: (a) The violation involves more than one hundred but fewer than one thousand items that bear the counterfeit mark. (b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is more than one thousand dollars but less than ten thousand dollars. C. A person who knowingly manufactures or produces with intent to sell or distribute any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 5 felony. D. A person who commits any act proscribed by subsection A of this section is guilty of a class 5 felony if either: 1. The person has two or more previous convictions under this section. 2. At least one of the following is true: (a) The violation involves at least one thousand items that bear the counterfeit mark. (b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is at least ten thousand dollars. E. A person who knowingly has possession, custody or control of at least twenty-six items that bear a counterfeit mark is presumed to possess the items with intent to sell or distribute the items. F. In any criminal proceeding in which a person is convicted of a violation of this section, the court may order the convicted person to pay restitution to the intellectual property owner. G. A law enforcement officer may seize any item that bears a counterfeit mark and all other personal property that is employed or used in connection with a violation of this section, including any items, objects, tools, machines, equipment, instrumentalities or vehicles. All personal property seized pursuant to this section shall be forfeited pursuant to title 13, chapter 39. H. After a disposition or final judgment, on the request of the intellectual property owner, a law enforcement officer shall release all seized items that bear a counterfeit mark to the intellectual property owner for destruction or disposition. If the intellectual property owner does not request the release of the seized items that bear a counterfeit mark, the law enforcement officer shall destroy the items unless the intellectual property owner consents to another form of disposition. I. Any certificate of registration pursuant to this article or federal law of any intellectual property is prima facie evidence of the facts stated in the certificate of registration. J. In addition to the remedies provided in section 44-1451, an intellectual property owner who sustains a loss as a result of a violation of this section may file an action in superior court for recovery of up to treble damages and the costs of the suit including reasonable attorney fees. K. The remedies provided in this section are cumulative to all other civil and criminal remedies provided by law. L. For the purposes of this section, the quantity or retail value of items or services includes the aggregate quantity or retail value of all items that the defendant manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses and that bear a counterfeit mark or that are identified by a counterfeit mark. M. For the purposes of this section: 1. "Counterfeit mark" means: (a) Any unauthorized reproduction or copy of intellectual property. (b) Intellectual property that is affixed to any item that is knowingly sold, offered for sale, manufactured or distributed or to any identifying services offered or rendered without the authority of the intellectual property owner. 2. "Intellectual property" means any trademark, service mark, trade name, label, term, device, design or word that is adopted or used by a person to identify that person's goods or services. 3. "Item" includes: (a) Any component that is designed, marketed or otherwise intended to be used on or in connection with any goods or services. (b) Any component of a finished product. 4. "Retail value" means: (a) For items that bear a counterfeit mark and that are components of a finished product, the manufacturer's suggested retail price of the finished product on or in which the component would be utilized. (b) For all other items that bear a counterfeit mark or services that are identified by a counterfeit mark, the manufacturer's suggested retail price for those items or services. 44-1455. Use of unauthorized copy of computer software; violation; classification A person who knowingly uses, other than for personal, noncommercial use, an unauthorized copy of computer software that when used depicts, incorporates or displays or causes to be depicted, incorporated or displayed a mark that has been registered under this article for computer software is guilty of a class 5 felony. 44-1456. Use of trademarked container for other articles; violation; classification A person who has or uses a cask, bottle, vessel, case, cover, label or other thing bearing or having in any way connected with it the duly filed trademark or name of another, for the purpose of disposing of, with intent to deceive or defraud, any article other than the article which such container or thing originally contained or was connected with by the owner of such trademark or name, is guilty of a class 2 misdemeanor. 44-1460. Registration of trade name, title or designation A. Any person, partnership, corporation, firm, association, society, foundation, federation or organization doing business in this state or any foreign corporation licensed to exercise its corporate powers in this state, may register with the secretary of state, on a form to be furnished by the secretary of state, the name, title or designation under which the applicant is operating, setting forth at least the following information: 1. The name and email and business address of the applicant for such registration. If the applicant is a corporation, the state of its incorporation shall be disclosed. 2. The name, title or designation to be registered. 3. The general nature of the business conducted by the applicant. 4. The length of time during which the name, title or designation has been used by the applicant in the applicant's business operations in this state. 5. A statement that the applicant has conducted a search and found that the trade name, title or designation is distinguishable on the record from both of the following: (a) Any other name previously filed and on record with the secretary of state. (b) An existing corporation name or a corporate name reserved pursuant to title 10, chapters 4, 19 and 24 through 40. B. The applicant or a member or officer of the firm, partnership, corporation, association, society, foundation, federation or other organization shall sign the application. C. A single name, title or designation may be registered on each application submitted under this article. 44-1460.01. Issuance of certificate; restrictions A. Upon compliance by the applicant with the requirements of this article the secretary of state shall issue a certificate of registration. The certificate shall show the name and business address of the applicant, the name, title or designation registered, the date of first use claimed, the date of registration and the term of registration. B. The secretary of state shall not file an application for the registration of any trade name, title or designation if it is not distinguishable on the record from any other name previously filed and on record with the secretary of state. C. The secretary of state shall not file an application for the registration of any trade name, title or designation if it is not distinguishable on the record from an existing corporate name or a corporate name reserved pursuant to title 10, chapters 4, 19 and 24 through 40. 44-1460.02. Effective term of registration; renewal; expiration notice A. Registration of a name, title or designation under the terms of this article is effective for a term of five years from the date of registration. Upon application filed within six months prior to the expiration of such term, on a form furnished by the secretary of state, the registration may be renewed at the end of each five-year period for a like term. B. The secretary of state shall notify registrants within the sixty days next preceding the expiration of the five years from the date of registration of the necessity of renewal by writing to the last known address of the registrants. 44-1460.03. Assignment and recording of rights Any name, title or designation and its registration may be assignable by an instrument in writing duly executed and may be recorded with the secretary of state who upon recording the assignment shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal of the registration. 44-1460.04. Public examination of records The secretary of state shall keep for public examination a record of all trade names registered or renewed under the provisions of this article. 44-1460.05. Exclusive rights; common law rights A. The registration of a trade name if prior in time to the filing of articles of incorporation or the reservation of a corporate name shall give to the holder of the registered trade name exclusive right to the use of such name. B. Nothing in this article shall adversely affect the rights or the enforcement of rights in trade names acquired in good faith at any time at common law. 44-1460.06. Electronic filing; acceptance A. Any document that is required to be filed pursuant to this article may be filed in an electronic format that is approved by the secretary of state. B. Any document that is filed in accordance with this section is deemed to comply with: 1. The filing requirements of this article. 2. The requirement that a filing be submitted with a written signature. 3. Any requirement that the filing be filed under the penalty of perjury. C. The secretary of state may adopt rules requiring that any person that submits a document for filing pursuant to this section also submit a written or printed copy of the document as a prerequisite to the document being deemed filed. D. Except as provided in this section, all civil and criminal statutes applicable to the filing of paper documents apply to all documents filed pursuant to this section. 44-1460.07. Trade name registration cancellation; release for use A. The secretary of state shall cancel a trade name registration if: 1. The secretary of state receives a voluntary request for cancellation from the registrant or the assignee of record. 2. The registration is not renewed in accordance with this article. 3. A court of competent jurisdiction orders the cancellation on any grounds. 4. The registration was obtained fraudulently by containing false or misleading information. B. The secretary of state may release a trade name for use pursuant to this article six months after the trade name's corporate owner has been administratively dissolved. 44-1481. Fraudulent advertising practices defined; violation; classification A. A person is guilty of a class 3 misdemeanor who: 1. Knowingly and with the intent to sell to the public real or personal property or services, or to induce the public to acquire an interest therein, makes and publishes an advertisement, either printed or by public outcry or proclamation, or otherwise, containing any false, fraudulent, deceptive or misleading representations in respect to such property or services, or the manner of its sale or distribution. 2. Publishes, circulates or disseminates any statement or assertion of fact concerning real estate which is known by him to be untrue, and which is made or disseminated with the intention of misleading. B. A merchant is guilty of a class 3 misdemeanor who advertises or displays any brand of goods known to the general public and quotes prices in connection therewith as an inducement to attract purchasers to the place of business so advertised, and makes false statements regarding the quality or merits of the goods advertised. 44-1482. Unsolicited commercial fax advertisements; definition A. Each unsolicited commercial fax advertisement shall include the name, address, fax number and toll free or local contact telephone number of the vendor that sends the fax. B. Any person who receives an unsolicited commercial fax advertisement may contact the vendor that sent the fax and request that no further faxes be sent. On receiving a request that no further faxes be sent, a vendor shall have three business days to update its records. If the vendor continues to send unsolicited commercial faxes three business days after the person requests not to receive further faxes, the person may charge the vendor five dollars for each faxed page received. C. This section shall not be construed to alter or restrict any rights a person may have under federal law to recover for the sending of an unsolicited commercial fax advertisement by a vendor. D. For the purposes of this section, "vendor" means any individual, corporation, business trust, partnership, association or other legal entity. 44-1483. Digital advertising directed toward children; content restrictions; civil penalty; enforcement; definitions A. A child-directed application shall take appropriate measures to prevent the display of inappropriate and mature advertisements on the child-directed application. In determining whether an application is a child-directed application, all of the following shall be considered: 1. The subject matter. 2. The visual content. 3. The use of animated characters or child-oriented activities. 4. The age of the models and the presence of child celebrities or celebrities who appeal to children. 5. Any incentive. 6. Any music or other audio content. B. A child-directed application that does not comply with this section is subject to a civil penalty of up to $100,000 per violation. C. The attorney general shall enforce this section. D. For the purposes of this section: 1. "Application platform" means a digital distribution service that offers for download an application. 2. "Child-directed application" means an application that is primarily intended for use or download by an individual who is eleven years of age or younger. 3. "Inappropriate and mature advertisement" means an advertisement that sells or promotes any of the following: (a) Violence. (b) Explicit language. (c) Sexual content. (d) Alcohol or drug use. 44-1501. Definitions In this