§1321 Remedy for Infringement

Summary

A design owner can sue if someone infringes the design after the owner gets a certificate of registration. If 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 eligible, can enforce rights in the same lawsuit. The owner may do this only if the owner already filed a proper application and took it to final refusal, sends a copy of the complaint to the Administrator within 10 days after the suit starts, and the defendant has done acts that would be infringement if the design were protected. The Administrator may join the court case on registrability by entering an appearance within 60 days after being served, but the court can decide the issue even if the Administrator does not join. The parties may instead use arbitration within the time the Administrator sets by rule; arbitration is governed by Title 9. The parties must notify the Administrator of any arbitration award. The award is final between the parties but cannot be enforced until the Administrator is told. The Administrator may still decide registrability in a cancellation proceeding under section 1313(c).