[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2173 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 2173

 To amend the Trademark Act of 1946 to provide that the licensing of a 
mark for use by a related company may not be construed as establishing 
    an employment relationship between the owner of the mark, or an 
authorizing person, and either that related company or the employees of 
             that related company, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 22, 2023

   Mr. King (for himself, Mr. Lankford, Mr. Manchin, Mr. Braun, Ms. 
    Sinema, Mr. Tillis, Mr. Cornyn, and Ms. Collins) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend the Trademark Act of 1946 to provide that the licensing of a 
mark for use by a related company may not be construed as establishing 
    an employment relationship between the owner of the mark, or an 
authorizing person, and either that related company or the employees of 
             that related company, 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 ``Trademark Licensing Protection Act 
of 2023''.

SEC. 2. SAFE HARBOR.

    Section 5 of the Act entitled ``An Act to provide for the 
registration and protection of trademarks used in commerce, to carry 
out the provisions of certain international conventions, and for other 
purposes'', approved July 5, 1946 (commonly known as the ``Trademark 
Act of 1946'') (15 U.S.C. 1055), is amended--
            (1) in the first sentence, by striking ``Where a'' and 
        inserting the following:
    ``(a) In General.--Where a''; and
            (2) by adding at the end the following:
    ``(b) Consistency in Use.--
            ``(1) Definitions.--In this subsection--
                    ``(A) the term `authorizing person' means a person 
                that is authorized by the owner of a mark to license 
                that mark for use by a related company;
                    ``(B) the term `communicate', with respect to 
                subparagraph (D)(i)(II), does not include any 
                communication related to a personnel or employment 
                policy or procedure;
                    ``(C) the term `employment relationship' means any 
                type of joint employer relationship, single employer 
                relationship, or other employment-related status or 
                relationship;
                    ``(D) the term `exercise control over the mark'--
                            ``(i) includes, but is not limited to, 
                        requiring a related company to--
                                    ``(I) complete training conducted 
                                for the purpose of preserving or 
                                enhancing goodwill, a reputation, 
                                uniformity, or the expectation of the 
                                public with respect to the nature and 
                                quality of goods or services associated 
                                with a mark; or
                                    ``(II) communicate with the owner 
                                of a mark, or an authorizing person, 
                                with respect to preserving or enhancing 
                                goodwill, a reputation, uniformity, or 
                                the expectation of the public with 
                                respect to the nature and quality of 
                                goods or services associated with a 
                                mark; and
                            ``(ii) does not include any personnel or 
                        employment policy or procedure that is 
                        communicated--
                                    ``(I) by--
                                            ``(aa) the owner of a mark; 
                                        or
                                            ``(bb) an authorizing 
                                        person; and
                                    ``(II) to--
                                            ``(aa) a related company 
                                        with respect to the mark; or
                                            ``(bb) any employee of a 
                                        related company described in 
                                        item (aa);
                    ``(E) the term `franchise' means a franchise, as 
                defined--
                            ``(i) in section 436.1(h) of title 16, Code 
                        of Federal Regulations, as in effect on the 
                        date of enactment of this subsection; or
                            ``(ii) under an applicable State franchise 
                        law;
                    ``(F) the term `franchisee' means a franchisee, as 
                defined--
                            ``(i) in section 436.1(i) of title 16, Code 
                        of Federal Regulations, as in effect on the 
                        date of enactment of this subsection; or
                            ``(ii) under an applicable State franchise 
                        law;
                    ``(G) the term `franchisor' means a franchisor, as 
                defined--
                            ``(i) in section 436.1(k) of title 16, Code 
                        of Federal Regulations, as in effect on the 
                        date of enactment of this subsection; or
                            ``(ii) under an applicable State franchise 
                        law; and
                    ``(H) the term `personnel or employment policy or 
                procedure' means--
                            ``(i) any contractually retained right of 
                        the owner of a mark, or an authorizing person, 
                        to directly control a related company's hiring, 
                        promotion, firing, or discipline of the 
                        employees of such related company;
                            ``(ii) any contractually retained right of 
                        the owner of a mark, or an authorizing person, 
                        to directly control a related company's rates 
                        of pay, including wages and fringe benefits;
                            ``(iii) any contractually retained right of 
                        the owner of a mark, or an authorizing person, 
                        to directly control a related company's 
                        assignment of employee work schedules;
                            ``(iv) any contractually retained right of 
                        the owner of a mark, or an authorizing person, 
                        to directly control collective bargaining 
                        procedures or labor relations; and
                            ``(v) any contractually retained right of 
                        the owner of a mark, or an authorizing person, 
                        to directly supervise the employees of a 
                        related company.
            ``(2) Applicability.--For the purposes of the National 
        Labor Relations Act (29 U.S.C. 151 et seq.) and the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 201 et seq.), none of the 
        following may be construed, alone or in combination with any 
        other factor, as establishing an employment relationship 
        between the owner of a mark that is a franchisor, or an 
        authorizing person that is a franchisor, and a related company 
        with respect to that franchisor, or the employees of that 
        related company:
                    ``(A) The licensing of the mark for use by that 
                related company or the employees of that related 
                company.
                    ``(B) Any exercise of control over the mark by that 
                owner or authorizing person, as applicable--
                            ``(i) with respect to the use of the mark 
                        by that related company or the employees of 
                        that related company; and
                            ``(ii) for the purpose of preserving or 
                        enhancing goodwill, a reputation, uniformity, 
                        or the expectation of the public with respect 
                        to the nature and quality of goods or services 
                        associated with the mark.''.

SEC. 3. APPLICABILITY.

    This Act, and the amendments made by this Act, shall not apply to 
any proceeding before the National Labor Relations Board that is 
commenced before the date of enactment of this Act.
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