Title 37 — TRADE REGULATION

The director, with or without prior notice or hearing, may issue a cease and desist order and may issue an order denying, suspending, or revoking any notice filing, amendment, or exemption if the director finds: (1) That the applicant, or franchisor or any officer, director, agen…

As an alternative to the procedure prescribed in § 37-5B-41 , the director may issue an order to show cause setting a hearing and requiring an applicant, notice filer, franchisor, or other person to appear and show cause why a cease and desist order should not be issued, or why a…

The director may impose a civil penalty against a person named in an order issued pursuant to subdivisions (1) to (3), inclusive, and subdivision 37-5B-41(6). The amount of the civil penalty may not exceed five thousand dollars for each act or omission that constitutes the basis …

Upon the entry of an order pursuant to § 37-5B-41 without a hearing, the director of the Division of Insurance shall promptly serve a copy of the order upon the subject applicant, franchisor, or other person. The order shall state the reasons for its issuance and shall either ord…

If no hearing is requested and none is ordered by the director, an order entered pursuant to § 37-5B-41 without a hearing shall remain in effect until it is modified or vacated by the director. Source: SL 2008, ch 203 , § 45.

If a hearing is requested or ordered, the director, after notice and hearing held in accordance with chapter 1-26 shall affirm, modify, or vacate the order. Source: SL 2008, ch 203 , § 46.

If the director has reasonable cause to believe that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule or order thereunder, the director may, in addition to all other remedies, through the att…

In addition to all other penalties and remedies provided by this chapter, whether administrative or judicial in nature, the courts of this state have jurisdiction to grant such temporary or permanent injunctive relief as is necessary to prevent and restrain violations of this cha…

A person who violates any provision of this chapter or any rule or order thereunder is liable to the franchisee for actual damages, costs, and attorneys and experts fees. In the case of a violation of §§ 37-5B-4 , 37-5B-7 to 37-5B-9 , inclusive, or 37-5B-17 , the franchisee may a…

An initial application for the notice filing of a franchise shall be made by filing with the director of the Division of Insurance a franchise notice filing application and one clean copy of the disclosure document and consent to service of process, accompanied by a fee of two hu…

No person may obtain relief for an action pursuant to § 37-5B-49 : (1) In an action for rescission pursuant to §§ 37-5B-4 , 37-5B-7 to 37-5B-9 , inclusive, or 37-5B-17 unless the action is instituted within one year after the violation occurred; (2) In an action for actual damage…

Any action or proceeding that is pending on July 1, 2008 or may be instituted on the basis of conduct occurring before July 1, 2008, is still subject to the provisions of chapter 37-5A as of June 30, 2008. However, no civil action may be maintained to enforce any liability under …

Any effective registration and administrative order relating to the registrations, rules, statements of policy, interpretative opinions, declaratory rulings, no action determinations, and conditions imposed on the registrations prior to July 1, 2008 remain in effect while they wo…

Chapter 37-5A as of June 30, 2008, exclusively applies to an offer or sale made within one year after July 1, 2008 pursuant to an offering made in good faith before July 1, 2008 on the basis of an exemption available under chapter 37-5A . Source: SL 2008, ch 203 , § 54.

The director may require the franchisor to alter or amend the proposed disclosure document in order to assure full and fair disclosure to prospective purchasers. Source: SL 2008, ch 203 , § 6.

There is no filing required with the division for updating disclosure documents; but disclosure information shall be updated as follows: (1) Any information in the disclosure document shall be current as of the close of the franchisor's most recent fiscal year. After the close of…

For the purposes of § 37-5B-7 , a start-up franchise system that does not yet have audited financial statements, may phase-in the use of audited financial statements by providing, at a minimum, the following statements in the times indicated below: (1) The franchisor's first part…

For the purposes of § 37-5B-7 , a start-up franchisor may phase-in the disclosure of audited financial statements, if the franchisor: (1) Prepares audited financial statements as soon as practicable; (2) Prepares unaudited statements in a format that conforms as closely as possib…

The following definitions apply to §§ 37-6-2 and 37-6-3 : (1) "Affixing" within the meaning of such sections is complete, whether such mark is affixed to the goods themselves, or to any box, bale, barrel, bottle, case, cask, wrapper, or other package, or vessel, or any cover or s…

A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others may not be registered if it consists of a mark which: (1) When applied to the goods or services of the applicant, is merely descriptive or deceptively…

A mark by which the goods or services of any applicant for registration may be distinguished from the goods of others shall not be registered if it consists of or comprises a mark which so resembles a mark registered in this state or a mark or trade name previously used in this s…

The following general classes of goods and services are established for the convenience of the administration of §§ 37-6-4 to 37-6-27 , inclusive, but not to limit or extend the applicant's or registrant's rights. A single application for registration of a mark may include any go…

Upon compliance by the applicant with the requirements of §§ 37-6-5 to 37-6-12 , inclusive, the secretary of state shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the sec…

Registration of a mark under § 37-6-13 is effective for a term of four years from the date of registration. Upon application filed within six months prior to the expiration of the term, on a form to be furnished by the secretary of state, the registration may be renewed for a lik…

Any person who shall for himself, or on behalf of any other person, procure the filing or registration of a mark in the Office of the Secretary of State under the provisions of § 37-6-5 or 37-6-13 , by knowingly making any false or fraudulent representation or declaration, verbal…

A mark and its registration under § 37-6-13 is assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly exec…

The secretary of state shall cancel from the register any registration for which the secretary of state has received a voluntary request for cancellation from the registrant or the assignee of record. The secretary of state, upon notice to the registrant, may cancel from the regi…

The secretary of state shall cancel from the register any registration concerning which a court of competent jurisdiction shall find (1) That the registered mark has been abandoned; (2) That the registrant is not the owner of the mark; (3) That the registration was granted improp…

Every person who intentionally forges or counterfeits any trade - mark usually fixed by any person to any goods of such person with intent to pass off any goods to which such forged or counterfeited trade - mark is affixed as to the goods of such person; or who, with intent to de…

The secretary of state shall cancel from the register when a court of competent jurisdiction shall order cancellation of a registration on any ground. Source: SL 1955, ch 232 , § 8; SDC Supp 1960, § 51.0908 (5).

The secretary of state shall cancel from the register all registrations granted under § 37-6-13 and not renewed in accordance with the provisions of §

The secretary of state shall keep for public examination a record of all marks registered or renewed under §§ 37-6-13 and

Any owner of a mark registered under § 37-6-13 may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof. The circuit court may grant injunctions to restrain such manufacture, use, display or sale as may be by the court deemed j…

Subject to the provisions of § 37-6-27 , any person who shall use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under § 37-6-13 in connection with the sale, offering for sale, or advertising of any goods o…

Subject to the provisions of § 37-6-27 , any person who shall reproduce, counterfeit, copy, or colorably imitate any mark registered under § 37-6-13 and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, o…

Nothing in §§ 37-6-4 to 37-6-26 , inclusive, shall adversely affect the right or the enforcement of rights in marks acquired in good faith at any time at common law. Source: SL 1955, ch 232 , § 13; SDC Supp 1960, § 51.0913; SL 1980, ch 264 , § 20.

Each register of deeds shall, on the application of any person domiciled within his county or any corporation organized under the laws of this state engaged in the manufacturing, bottling, or selling of soda water, mineral water, aerated waters, unfermented cider, milk, cream, or…

The use by any person other than the rightful owner, without such owner's consent, of any container, or the possession thereof by any junk dealer or dealer in any such container, the same being marked or stamped and registered as required in § 37-6-28 , shall be prima facie evide…

Every person who, with intent to defraud, affixes to any goods, or to any container of goods, any label, stamp, brand, imprint, printed wrapper, ticket, or mark, which designates such goods by any word or token which is wholly or in part the same to the eye or to the ear as the w…

Any person who intentionally obliterates, injures or destroys the names, marks, or brands affixed to any cask, keg, barrel, jug, bottle, box, or other container used or intended to be used for the purpose specified in § 37-6-28 , and not his property, is guilty of a Class 2 misde…

Any person residing out of the state, or any corporation organized under the laws of any other state or territory, engaged in the business mentioned in § 37-6-28 , shall be entitled to the privilege and protection of §§ 37-6-28 to 37-6-30 , inclusive, if he or it shall cause the …

Whenever any person engaged in manufacturing, bottling, or selling in bottle, soda, mineral water, cider, or other nonalcoholic beverage, has filed and published in the manner authorized by law, a description of a name, mark, or label usually stamped by him on the bottles contain…

Terms used in §§ 37-6-4 to 37-6-27 , inclusive, mean: (1) "Applicant," embraces the person filing an application for registration of a mark under § 37-6-5 , the person's legal representatives, successors, or assigns; (2) "Emblem," any badge, motto, button, decoration, charm, rose…

Subject to the limitations set forth in §§ 37-6-6 to 37-6-11 , inclusive, any person who adopts and uses a 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 settin…

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 consists of or comprises immoral, deceptive, or scandalous matter. Source: SL 1955, ch 232 , § 2; SDC Supp 1960, § 51.09…

A mark by which the goods or services of any applicant for registration may be distinguished from the goods of others shall not be registered if it consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beli…

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 consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipalit…

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 consists of or comprises the name, signature or portrait of any living individual, except with his written consent. Sour…

It is a Class 2 misdemeanor for any person to distribute, sell, or offer for sale any article of American Indian art or craft unless the article is clearly and legibly labeled or branded as to place of manufacture. Source: SL 1963, ch 60 , § 1; SL 1977, ch 190 , § 248.

It is a Class 2 misdemeanor for any person to distribute, sell, or offer for sale any article of American Indian art or craft which is mislabeled or misbranded as to place of manufacture. Any such article shall be deemed mislabeled or misbranded if its label or brand is not clear…