[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1604 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1604

To restore to the judiciary the power to decide all trademark and trade 
 name cases arising under the laws and treaties of the United States, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 29, 2005

Mr. Craig (for himself and Mr. Roberts) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To restore to the judiciary the power to decide all trademark and trade 
 name cases arising under the laws and treaties of the United States, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Judicial Powers Restoration Act of 
2005''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) Section 1 of Article III of the Constitution of the 
        United States of America vests ``judicial Power'' exclusively 
        in the courts. Section 2 of Article III states that this 
        ``judicial Power shall extend to all Cases, in Law and Equity, 
        arising under this Constitution, the Laws of the United States, 
        and Treaties...'' In interpreting Article III of the 
        Constitution, the Supreme Court in Muskrat v. United States 
        defined the term ``judicial power'' to mean ``the right to 
        determine actual controversies arising between adverse 
        litigants, duly instituted in courts of proper jurisdiction''.
            (2) In 1996, a holder of a trademark registration issued by 
        the Patent and Trademark Office asserted trademark infringement 
        and other claims in a United States district court against an 
        alleged infringer. The plaintiff's claims for relief were based 
        upon laws and treaties of the United States, including the 
        Trademark Act of 1946 (15 U.S.C. 1051 et seq.) and the Inter-
        American Convention for Trademark and Commercial Protection.
            (3) In October 1998, just prior to commencement of the 
        trial, the alleged infringer procured an amendment to the 
        Department of Commerce and Related Agencies Appropriations Act, 
        1999 (as contained in section 101(b) of division A of Public 
        Law 105-277; 112 Stat. 2681-88). That amendment is commonly 
        referred to as ``section 211'' and has been of singular benefit 
        to that defendant in the courts.
            (4) Section 211(a)(2) and (b) provides that ``No United 
        States court shall recognize, enforce, or otherwise validate 
        any assertion of rights'' of certain trademarks or commercial 
        names of the type at issue in the litigation referred to in 
        paragraph (2). Section 211(a)(1) also rescinds the general 
        authority permitting payment of the fees necessary for 
        registration and renewal of such trademarks with the United 
        States Patent and Trademark Office.
            (5) The intended and actual effect of section 211 is to 
        strip United States courts of the authority to decide the 
        ownership and enforceability of such trademarks and trade 
        names, including those at issue in the litigation described in 
        paragraph (2). As a result of section 211, the plaintiff in the 
        litigation was prevented from asserting the plaintiff's 
        infringement claim. By preventing the payment of fees for 
        trademark registration and renewal in the Patent and Trademark 
        Office, section 211 also denies parties the ability to preserve 
        claims of ownership in such trademarks pending judicial 
        determination of enforcement rights.
            (6) Section 211 is not needed for the courts to reach 
        equitable results with respect to the United States trademark 
        and trade name rights of foreign nationals who have suffered 
        from confiscation of their businesses at home. It has been the 
        longstanding practice of the Federal courts to do equity in 
        adjudicating disputes involving such rights.
            (7) Repeal of section 211 is necessary and desirable to 
        restore to the courts the power to determine the ownership and 
        enforceability of all trademarks and trade names and to 
        preserve trademark registrations pending such determinations.
    (b) Purpose.--The purpose of this Act is to restore to the 
judiciary the power to decide all trademark and trade name cases 
arising under the laws and treaties of the United States, and for other 
purposes.

SEC. 3. RESTORATION OF JUDICIAL POWERS.

    (a) In General.--Section 211 of the Department of Commerce and 
Related Agencies Appropriations Act, 1999 (as contained in section 
101(b) of division A of Public Law 105-277; 112 Stat. 2681-88) is 
repealed.
    (b) Regulations.--Not later than 30 days after the date of 
enactment of this Act, the Secretary of the Treasury shall issue such 
regulations as are necessary to carry out the repeal made by subsection 
(a), including removing any prohibition on transactions or payments to 
which subsection (a)(1) of section 211 of the Department of Commerce 
and Related Agencies Appropriations Act, 1999 applied.
    (c) Authority of Courts.--United States courts shall have the 
authority to recognize, enforce, or otherwise validate any assertion of 
rights in any mark or trade name based on common law rights or 
registration or under subsection (b) or (e) of section 44 of the 
Trademark Act of 1946 (15 U.S. C. 1126 (b) or (e)) or based on any 
treaty to which the United States is a party.
                                 <all>