Section 407.309

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 2007   

  407.309.  Advertising restrictions — definitions — attorney general to enforce, when — civil penalty authorized. — 1.  As used in this section, the following terms mean:

  (1)  "Performing group", a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name;

  (2)  "Recording group", a vocal or instrumental group at least one of whose members has previously released a commercial sound recording under that group's name and in which the member or members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;

  (3)  "Sound recording", a work that results from the fixation on a material object of a series of musical, spoken, or other sounds regardless of the nature of the material object, such as a disk, tape, or other phono-record, in which the sounds are embodied.

  2.  It shall be unlawful for any person to advertise or conduct a live musical performance or production in this state through the use of a false, deceptive, or misleading affiliation, connection, or association between the performing group and the recording group.  This section shall not apply if:

  (1)  The performing group is the authorized registrant and owner of a federal service mark for that group registered in the United States Patent and Trademark Office;

  (2)  At least one member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;

  (3)  The live musical performance or production is identified in all advertising and promotion as a salute or tribute;

  (4)  The advertising does not relate to a live musical performance or production taking place in this state; or

  (5)  The performance or production is expressly authorized by the recording group.

  3.  Whenever the attorney general has reason to believe that any person is advertising or conducting or is about to advertise or conduct a live musical performance or production in violation of this section and that proceedings would be in the public interest, the attorney general may bring an action against the person to restrain by temporary or permanent injunction that practice.

  4.  Whenever any court issues a permanent injunction to restrain and prevent violations of this section as authorized in subsection 3 of this section, the court may in its discretion direct that the defendant restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any violation of this section, under terms and conditions to be established by the court.

  5.  Notwithstanding the provisions of section 407.100 to the contrary, any person who violates this section shall be assessed a civil penalty of not less than five thousand dollars nor more than fifteen thousand dollars per violation, which civil penalty shall be in addition to any other relief which may be granted under subsection 4 of this section.  Each performance or production declared unlawful by this section shall constitute a separate violation.

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(L. 2007 H.B. 780)