§1321 Remedy for infringement

Summary

A design owner may bring a lawsuit for copying or other infringement after getting a registration certificate. If the government’s design office (the Administrator) refuses to register a design, the owner can ask a court to review that final refusal and, if the court finds the design is protectable, enforce the owner’s rights. To do that, the owner must have already filed and pursued a registration application to final refusal, must deliver a copy of the complaint to the Administrator within 10 days after filing suit, and the defendant must have done acts that would be infringement if the design were protected. The Administrator can join the court case on the question of registrability by appearing within 60 days after being served, but the court can decide even if the Administrator does not join. The parties may choose arbitration under Title 9 instead, following any time limits the Administrator sets. They must notify the Administrator of any arbitration award; the award controls between the parties but cannot be enforced until the Administrator is notified. The Administrator can still decide registrability in a cancellation proceeding under section 1313(c).