S.B. 26

1

UTAH E-COMMERCE INTEGRITY ACT
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Stephen H. Urquhart
5 House Sponsor: Bradley G. Last
6
7 LONG TITLE
8 Committee Note:
9 The Public Utilities and Technology Interim Committee recommended this bill.
10 General Description:
11 This bill contains prohibitions and other provisions concerning Internet-related conduct,
12 including phishing, pharming, spyware, and cybersquatting.
13 Highlighted Provisions:
14 This bill:
15 . defines terms;
16 . prohibits a person from facilitating certain types of fraud and injury through use of
17 electronic communications;
18 . allows for the removal of domain names and online content by an Internet registrar
19 or Internet service provider under certain circumstances;
20 . prohibits contrary laws enacted by a political subdivision of the state;
21 . forbids the use of various types of software, commonly called spyware, if used for
22 certain purposes;
23 . provides exceptions from spyware provisions for various types of communications
24 and interactions, including authorized diagnostics;
25 . provides penalties, both criminal and civil, for violations of the bill's provisions;
26 . prohibits the registration of domain names under certain circumstances, commonly
27 referred to as cybersquatting;

28 . provides civil penalties for a violation of cybersquatting provisions; and
29 . makes technical changes.
30 Monies Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 This bill provides an effective date.
34 Utah Code Sections Affected:
35 AMENDS:
36 70-3a-402, as last amended by Laws of Utah 2008, Chapter 258
37 ENACTS:
38 13-40-103, Utah Code Annotated 1953
39 13-40-203, Utah Code Annotated 1953
40 13-40-204, Utah Code Annotated 1953
41 13-40-303, Utah Code Annotated 1953
42 13-40-402, Utah Code Annotated 1953
43 70-3a-309, Utah Code Annotated 1953
44 REPEALS AND REENACTS:
45 13-40-101, as enacted by Laws of Utah 2004, Chapter 363
46 13-40-102, as last amended by Laws of Utah 2005, Chapter 168
47 13-40-201, as last amended by Laws of Utah 2005, Chapter 168
48 13-40-202, as enacted by Laws of Utah 2005, Chapter 168
49 13-40-301, as last amended by Laws of Utah 2005, Chapter 168
50 13-40-302, as last amended by Laws of Utah 2005, Chapter 168
51 13-40-401, as enacted by Laws of Utah 2004, Chapter 363
52
53 Be it enacted by the Legislature of the state of Utah:
54 Section 1. Section 13-40-101 is repealed and reenacted to read:
55 CHAPTER 40. UTAH E-COMMERCE INTEGRITY ACT
56 Part 1. General Provisions
57 13-40-101. Title.
58 This chapter is known as the "Utah E-Commerce Integrity Act."

59 Section 2. Section 13-40-102 is repealed and reenacted to read:
60 13-40-102. Definitions.
61 As used in this chapter:
62 (1) (a) "Cause to be copied" means to distribute or transfer computer software, or any
63 component of computer software.
64 (b) "Cause to be copied" does not include providing:
65 (i) transmission, routing, intermediate temporary storage, or caching of software;
66 (ii) a storage or hosting medium, such as a compact disk, website, or computer server
67 through which the software was distributed by a third party; or
68 (iii) an information location tool, such as a directory, index, reference, pointer, or
69 hypertext link, through which the user of the computer located the software.
70 (2) (a) "Computer software" means a sequence of instructions written in any
71 programming language that is executed on a computer.
72 (b) "Computer software" does not include a data component of a webpage that is not
73 executable independently of the webpage.
74 (3) "Computer virus" means a computer program or other set of instructions that is
75 designed to degrade the performance of or disable a computer or computer network and is
76 designed to have the ability to replicate itself on another computer or computer network
77 without the authorization of the owner of the other computer or computer network.
78 (4) "Damage" means any significant impairment to the:
79 (a) performance of a computer; or
80 (b) integrity or availability of data, software, a system, or information.
81 (5) "Execute," when used with respect to computer software, means the performance of
82 the functions or the carrying out of the instructions of the computer software.
83 (6) "False pretenses" means the representation of a fact or circumstance that is not true
84 and is calculated to mislead.
85 (7) (a) "Identifying information" means any information that can be used to access a
86 person's financial accounts or to obtain goods and services, including the person's:
87 (i) address;
88 (ii) birth date;
89 (iii) Social Security number;

90 (iv) driver license number;
91 (v) non-driver governmental identification number;
92 (vi) telephone number;
93 (vii) bank account number;
94 (viii) student identification number;
95 (ix) credit or debit card number;
96 (x) personal identification number;
97 (xi) unique biometric data;
98 (xii) employee or payroll number;
99 (xiii) automated or electronic signature;
100 (xiv) computer image file;
101 (xv) photograph; or
102 (xvi) computer screen name or password.
103 (b) "Identifying information" does not include information that is lawfully obtained
104 from publicly available information, or from federal, state, or local government records
105 lawfully made available to the general public.
106 (8) "Intentionally deceptive" means any of the following:
107 (a) an intentionally and materially false or fraudulent statement;
108 (b) a statement or description that intentionally omits or misrepresents material
109 information in order to deceive an owner or operator of a computer; or
110 (c) an intentional and material failure to provide a notice to an owner or operator
111 concerning the installation or execution of computer software, for the purpose of deceiving the
112 owner or operator.
113 (9) "Internet" means the global information system that is logically linked together by a
114 globally unique address space based on the Internet protocol (IP), or its subsequent extensions,
115 and that is able to support communications using the transmission control protocol/Internet
116 protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and
117 that provides, uses, or makes accessible, either publicly or privately, high-level services layered
118 on communications and related infrastructure.
119 (10) "Internet service provider" means:
120 (a) an Internet service provider, as defined in Section 76-10-1230 ; or

121 (b) a hosting company, as defined in Section 76-10-1230 .
122 (11) "Message" means a graphical or text communication presented to an authorized
123 user of a computer.
124 (12) (a) "Owner or operator" means the owner or lessee of a computer, or a person
125 using a computer with the owner's or lessee's authorization.
126 (b) "Owner or operator" does not include a person who owned a computer before the
127 first retail sale of the computer.
128 (13) "Person" means any individual, partnership, corporation, limited liability
129 company, or other organization, or any combination thereof.
130 (14) "Personally identifiable information" means any of the following information if it
131 allows the entity holding the information to identify the owner or operator of a computer:
132 (a) the first name or first initial in combination with the last name and a home or other
133 physical address including street name;
134 (b) a personal identification code in conjunction with a password required to access an
135 identified account, other than a password, personal identification number, or other
136 identification number transmitted by an authorized user to the issuer of the account or its agent;
137 (c) a Social Security number, tax identification number, driver license number,
138 passport number, or any other government-issued identification number; or
139 (d) an account balance, overdraft history, or payment history that personally identifies
140 an owner or operator of a computer.
141 (15) "Webpage" means a location that has a single uniform resource locator (URL)
142 with respect to the World Wide Web or another location that can be accessed on the Internet.
143 Section 3. Section 13-40-103 is enacted to read:
144 13-40-103. Application of chapter.
145 This chapter applies to conduct involving a computer, software, or an advertisement
146 located in, sent to, or displayed in this state.
147 Section 4. Section 13-40-201 is repealed and reenacted to read:
148 Part 2. Phishing and Pharming
149 13-40-201. Phishing and pharming.
150 (1) A person is guilty of phishing if, with intent to defraud or injure an individual, or
151 with knowledge that the person is facilitating a fraud or injury to be perpetrated by another:

152 (a) the person makes a communication under false pretenses purporting to be by or on
153 behalf of a legitimate business, without the authority or approval of the legitimate business; and
154 (b) the person uses the communication to induce, request, or solicit another person to
155 provide identifying information or property.
156 (2) A person is guilty of pharming if, with intent to defraud or injure another, or with
157 knowledge that the person is facilitating a fraud or injury to be perpetrated by another, the
158 person:
159 (a) creates or operates a webpage that represents itself as belonging to or being
160 associated with a legitimate business, without the authority or approval of the legitimate
161 business, if that webpage may induce any user of the Internet to provide identifying
162 information or property; or
163 (b) alters a setting on a user's computer or similar device or software program through
164 which the user may search the Internet, causing any user of the Internet to view a
165 communication that represents itself as belonging to or being associated with a legitimate
166 business, if the message has been created or is operated without the authority or approval of the
167 legitimate business and induces, requests, or solicits any user of the Internet to provide
168 identifying information or property.
169 Section 5. Section 13-40-202 is repealed and reenacted to read:
170 13-40-202. Removal of domain name or content -- Liability.
171 If an Internet registrar or Internet service provider believes in good faith that an Internet
172 domain name controlled or operated by the Internet registrar or Internet service provider, or
173 content residing on an Internet website or other online location controlled or operated by the
174 Internet registrar or Internet service provider, is used to engage in a violation of this part, the
175 Internet registrar or Internet service provider is not liable under any provision of the laws of
176 this state or of any political subdivision of the state for removing or disabling access to the
177 Internet domain name or other content.
178 Section 6. Section 13-40-203 is enacted to read:
179 13-40-203. Application of part.
180 (1) This part applies to the discovery of a phishing or pharming incident that occurs on
181 or after July 1, 2010.
182 (2) This part does not apply to a telecommunications provider's or Internet service

183 provider's good faith transmission or routing of, or intermediate temporary storing or caching
184 of, identifying information.
185 Section 7. Section 13-40-204 is enacted to read:
186 13-40-204. Relation to other law.
187 The conduct prohibited by this part is of statewide concern, and this part's provisions
188 supersede and preempt any provision of law of a political subdivision of the state.
189 Section 8. Section 13-40-301 is repealed and reenacted to read:
190 Part 3. Spyware Protection
191 13-40-301. Prohibition on the use of software.
192 A person who is not an owner or operator of a computer may not cause computer
193 software to be copied on the computer knowingly, with conscious avoidance of actual
194 knowledge, or willfully, if the software is used to:
195 (1) modify, through intentionally deceptive means, settings of a computer controlling:
196 (a) the webpage that appears when an owner or operator launches an Internet browser
197 or similar computer software used to access and navigate the Internet;
198 (b) the default provider or web proxy that an owner or operator uses to access or search
199 the Internet; or
200 (c) an owner's or an operator's list of bookmarks used to access webpages;
201 (2) collect, through intentionally deceptive means, personally identifiable information:
202 (a) through the use of a keystroke-logging function that records all or substantially all
203 keystrokes made by an owner or operator of a computer and transfers that information from the
204 computer to another person;
205 (b) in a manner that correlates personally identifiable information with data concerning
206 all or substantially all of the webpages visited by an owner or operator, other than webpages
207 operated by the person providing the software, if the computer software was installed in a
208 manner designed to conceal from all authorized users of the computer the fact that the software
209 is being installed; or
210 (c) by extracting from the hard drive of an owner's or an operator's computer, an
211 owner's or an operator's Social Security number, tax identification number, driver license
212 number, passport number, any other government-issued identification number, an account
213 balance, or overdraft history for a purpose unrelated to any of the purposes of the software or

214 service described to an authorized user;
215 (3) prevent, through intentionally deceptive means, an owner's or an operator's
216 reasonable efforts to block or disable the installation or execution of computer software by
217 causing computer software that the owner or operator has properly removed or disabled to
218 automatically reinstall or reactivate on the computer without the authorization of an authorized
219 user;
220 (4) intentionally misrepresent that computer software will be uninstalled or disabled by
221 an owner's or an operator's action;
222 (5) through intentionally deceptive means, remove, disable, or render inoperative
223 security, antispyware, or antivirus computer software installed on an owner's or an operator's
224 computer;
225 (6) enable use of an owner's or an operator's computer to:
226 (a) access or use a modem or Internet service for the purpose of causing damage to an
227 owner's or an operator's computer or causing an owner or operator, or a third party affected by
228 that conduct, to incur financial charges for a service that the owner or operator did not
229 authorize;
230 (b) open multiple, sequential, stand-alone messages in an owner's or an operator's
231 computer without the authorization of an owner or operator and with knowledge that a
232 reasonable computer user could not close the messages without turning off the computer or
233 closing the software application in which the messages appear, unless the communication
234 originated from the computer's operating system, a software application the user activated, or a
235 service provider that the user chose to use, or was presented for any of the purposes described
236 in Section 13-40-303 ; or
237 (c) transmit or relay commercial electronic mail or a computer virus from the
238 computer, if the transmission or relay is initiated by a person other than the authorized user
239 without the authorization of an authorized user;
240 (7) modify, without the authorization of an owner or operator, any of the following
241 settings related the computer's access to, or use of, the Internet:
242 (a) settings that protect information about an owner or operator for the purpose of
243 taking personally identifiable information of the owner or operator;
244 (b) security settings, for the purpose of causing damage to a computer; or

245 (c) settings that protect the computer from the uses identified in Subsection (6); or
246 (8) prevent, without the authorization of an owner or operator, an owner's or an
247 operator's reasonable efforts to block the installation of, or to disable, computer software by:
248 (a) presenting the owner or operator with an option to decline installation of computer
249 software with knowledge that, when the option is selected by the authorized user, the
250 installation nevertheless proceeds;
251 (b) falsely representing that computer software has been disabled;
252 (c) requiring in an intentionally deceptive manner the user to access the Internet to
253 remove the software with knowledge or reckless disregard of the fact that the software
254 frequently operates in a manner that prevents the user from accessing the Internet;
255 (d) changing the name, location, or other designation information of the software for
256 the purpose of preventing an authorized user from locating the software to remove it;
257 (e) using randomized or intentionally deceptive filenames, directory folders, formats,
258 or registry entries for the purpose of avoiding detection and removal of the software by an
259 authorized user;
260 (f) causing the installation of software in a particular computer directory or in computer
261 memory for the purpose of evading an authorized user's attempt to remove the software from
262 the computer; or
263 (g) requiring, without the authority of the owner of the computer, that an authorized
264 user obtain a special code or download software from a third party to uninstall the software.
265 Section 9. Section 13-40-302 is repealed and reenacted to read:
266 13-40-302. Other prohibited conduct.
267 A person who is not an owner or operator of a computer may not, with regard to the
268 computer:
269 (1) induce an owner or operator to install a computer software component onto the
270 owner's or the operator's computer by intentionally misrepresenting that installing the computer
271 software is necessary for security or privacy reasons or in order to open, view, or play a
272 particular type of content; or
273 (2) use intentionally deceptive means to cause the execution of a computer software
274 component with the intent of causing the computer to use the computer software component in
275 a manner that violates any other provision of this chapter.

276 Section 10. Section 13-40-303 is enacted to read:
277 13-40-303. Exceptions.
278 Sections 13-40-301 and 13-40-302 do not apply to the monitoring of, or interaction
279 with, an owner's or an operator's Internet or other network connection, service, or computer, by
280 a telecommunications carrier, cable operator, computer hardware or software provider, or
281 provider of information service or interactive computer service for network or computer
282 security purposes, diagnostics, technical support, maintenance, repair, network management,
283 authorized updates of computer software or system firmware, authorized remote system
284 management, or detection or prevention of the unauthorized use of or fraudulent or other illegal
285 activities in connection with a network, service, or computer software, including scanning for
286 and removing computer software prescribed under this chapter.
287 Section 11. Section 13-40-401 is repealed and reenacted to read:
288 Part 4. Enforcement
289 13-40-401. Phishing and pharming violations.
290 (1) A person who violates Part 2, Phishing and Pharming, is guilty of a third degree
291 felony.
292 (2) A civil action against a person who violates any provision of Part 2, Phishing and
293 Pharming, may be filed by:
294 (a) an Internet service provider that is adversely affected by the violation;
295 (b) an owner of a webpage, computer server, or a trademark that is used without
296 authorization in the violation; or
297 (c) the attorney general.
298 (3) A person permitted to bring a civil action under Subsection (2) may obtain either
299 actual damages for a violation of this chapter or a civil penalty not to exceed $150,000 per
300 violation of Part 2, Phishing and Pharming.
301 (4) A violation of Part 2, Phishing and Pharming, by a state-chartered or licensed
302 financial institution is enforceable exclusively by the financial institution's primary state
303 regulator.
304 Section 12. Section 13-40-402 is enacted to read:
305 13-40-402. Spyware protection violations.
306 (1) The attorney general, an Internet service provider, or a software company that

307 expends resources in good faith assisting authorized users harmed by a violation of Part 3,
308 Spyware Protection, or a trademark owner whose mark is used to deceive authorized users in
309 violation of Part 3, Spyware Protection, may bring a civil action against a person who violates
310 Part 3, Spyware Protection, to recover:
311 (a) actual damages and liquidated damages of at least $1,000 per violation of Part 3,
312 Spyware Protection, not to exceed $1,000,000 for a pattern or practice of violations; and
313 (b) attorney fees and costs.
314 (2) The court may increase a damage award to an amount equal to not more than three
315 times the amount otherwise recoverable under Subsection (1) if the court determines that the
316 defendant committed the violation willfully and knowingly.
317 (3) The court may reduce liquidated damages recoverable under Subsection (1) to a
318 minimum of $100, not to exceed $100,000 for each violation, if the court finds that the
319 defendant established and implemented practices and procedures reasonably designed to
320 prevent a violation of Part 3, Spyware Protection.
321 (4) In the case of a violation of Subsection 13-40-301 (6)(a) that causes a
322 telecommunications carrier or provider of voice over Internet protocol service to incur costs for
323 the origination, transport, or termination of a call triggered using the modem or
324 Internet-capable device of a customer of the telecommunications carrier or provider of voice
325 over Internet protocol as a result of the violation, the telecommunications carrier or provider of
326 voice over Internet protocol may bring a civil action against the violator:
327 (a) to recover the charges the telecommunications carrier or provider of voice over
328 Internet protocol is required to pay to another carrier or to an information service provider as a
329 result of the violation, including charges for the origination, transport, or termination of the
330 call;
331 (b) to recover the costs of handling customer inquiries or complaints with respect to
332 amounts billed for the calls;
333 (c) to recover reasonable attorney fees and costs; and
334 (d) for injunctive relief.
335 (5) For purposes of a civil action under Subsections (1), (2), and (3), a single action or
336 conduct that violates more than one provision of Part 3, Spyware Protection, shall be
337 considered as multiple violations based on the number of provisions violated.

338 Section 13. Section 70-3a-309 is enacted to read:
339 70-3a-309. Cybersquatting.
340 (1) (a) A person is liable in a civil action by the owner of a mark, including a personal
341 name, which is a mark for purposes of this section, if, without regard to the goods or services
342 of the person or the mark's owner, the person:
343 (i) has a bad faith intent to profit from the mark, including a personal name; and
344 (ii) for any length of time registers, acquires, traffics in, or uses a domain name in, or
345 belonging to, any person in this state that:
346 (A) in the case of a mark that is distinctive at the time of registration of the domain
347 name, is identical or confusingly similar to the mark;
348 (B) in the case of a famous mark that is famous at the time of registration of the
349 domain name, is identical or confusingly similar to or dilutive of the mark; or
350 (C) is a trademark, word, or name protected by reason of 18 U.S.C. 706 or 36 U.S.C.
351 220506.
352 (b) (i) In determining whether a person has a bad faith intent described in Subsection
353 (1)(a), a court may consider all relevant factors, including:
354 (A) the trademark or other intellectual property rights of the person, if any, in the
355 domain name;
356 (B) the extent to which the domain name consists of the legal name of the person or a
357 name that is otherwise commonly used to identify that person;
358 (C) the person's prior use, if any, of the domain name in connection with the bona fide
359 offering of any goods or services;
360 (D) the person's bona fide noncommercial or fair use of the mark in a site accessible
361 under the domain name;
362 (E) the person's intent to divert consumers from the mark owner's online location to a
363 site accessible under the domain name that could harm the goodwill represented by the mark,
364 either for commercial gain or with the intent to tarnish or disparage the mark, by creating a
365 likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
366 (F) the person's offer to transfer, sell, or otherwise assign, or solicitation of the
367 purchase, transfer, or assignment of the domain name to the mark owner or any third party for
368 financial gain without having used, or having an intent to use, the domain name in the bona

369 fide offering of any goods or services, or the person's prior conduct indicating a pattern of such
370 conduct;
371 (G) the person's provision of material and misleading false contact information when
372 applying for the registration of the domain name, the person's intentional failure to maintain
373 accurate contact information, or the person's prior conduct indicating a pattern of such conduct;
374 (H) the person's registration or acquisition of multiple domain names that the person
375 knows are identical or confusingly similar to another's mark that is distinctive at the time of
376 registration of the domain names, or is dilutive of another's famous mark that is famous at the
377 time of registration of the domain names, without regard to the goods or services of the person
378 or the mark owner; and
379 (I) the extent to which the mark incorporated in the person's domain name registration
380 is or is not distinctive and famous.
381 (ii) Bad faith intent described in Subsection (1)(a) may not be found in any case in
382 which the court determines that the person believed and had reasonable grounds to believe that
383 the use of the domain name was a fair use or otherwise lawful.
384 (c) In a civil action involving the registration, trafficking, or use of a domain name
385 under this section, a court may order the forfeiture or cancellation of the domain name or the
386 transfer of the domain name to the owner of the mark.
387 (d) (i) A person is liable for using a domain name under Subsection (1)(a) only if that
388 person is the domain name registrant or that registrant's authorized licensee, agent, affiliate,
389 representative, domain name registrar, domain name registry, or other domain name
390 registration authority that knowingly and actively assists a violation of this chapter by the
391 registrant.
392 (ii) A person may not be held liable under this section absent a showing of bad faith
393 intent to profit from the registration or maintenance of the domain name.
394 (iii) For purposes of this section, a "showing of bad faith intent to profit" shall be
395 interpreted in the same manner as under 15 U.S.C. Sec. 1114(2)(D)(iii).
396 (e) As used in this section, the term "traffics in" refers to transactions that include
397 sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for
398 consideration or receipt in exchange for consideration.
399 (2) (a) The owner of a mark registered with the U.S. Patent and Trademark Office or

400 under this chapter may file an in rem civil action against a domain name in the district court if
401 the owner is located in the state and if:
402 (i) the domain name violates any right of the owner of a mark registered in the Patent
403 and Trademark Office or registered under this chapter; and
404 (ii) the court finds that the owner:
405 (A) is not able to obtain personal jurisdiction over a person who would be a defendant
406 in a civil action under Subsection (1); or
407 (B) through due diligence was not able to find a person who would be a defendant in a
408 civil action under Subsection (1) by:
409 (I) sending a notice of the alleged violation and intent to proceed under this Subsection
410 (2)(a) to the registrant of the domain name at the postal and e-mail address provided by the
411 registrant to the registrar; and
412 (II) publishing notice of the action as the court may direct promptly after filing the
413 action.
414 (b) Completion of the actions required by Subsection (2)(a)(ii) constitute service of
415 process.
416 (c) In an in rem action under this Subsection (2), a domain name is considered to be
417 located in the judicial district in which:
418 (i) the domain name registrar, registry, or other domain name authority that registered
419 or assigned the domain name is located; or
420 (ii) documents sufficient to establish control and authority regarding the disposition of
421 the registration and use of the domain name are deposited with the court.
422 (d) (i) The remedies in an in rem action under this Subsection (2) are limited to a court
423 order for the forfeiture or cancellation of the domain name or the transfer of the domain name
424 to the owner of the mark.
425 (ii) Upon receipt of written notification of a filed, stamped copy of a complaint filed by
426 the owner of a mark in the district court under this Subsection (2), the domain name registrar,
427 domain name registry, or other domain name authority shall:
428 (A) expeditiously deposit with the court documents sufficient to establish the court's
429 control and authority regarding the disposition of the registration and use of the domain name
430 to the court; and

431 (B) not transfer, suspend, or otherwise modify the domain name during the pendency
432 of the action, except upon order of the court.
433 (iii) The domain name registrar or registry or other domain name authority is not liable
434 for injunctive or monetary relief under this section, except in the case of bad faith or reckless
435 disregard, which includes a willful failure to comply with a court order.
436 (3) The civil actions and remedies established by Subsection (1) and the in rem action
437 established in Subsection (2) do not preclude any other applicable civil action or remedy.
438 (4) The in rem jurisdiction established under Subsection (2) does not preclude any
439 other jurisdiction, whether in rem or personal.
440 Section 14. Section 70-3a-402 is amended to read:
441 70-3a-402. Infringement.
442 (1) Subject to Section 70-3a-104 and Subsection (2), any person is liable in a civil
443 action brought by the registrant for any and all of the remedies provided in Section 70-3a-404 ,
444 if that person:
445 (a) uses a reproduction, counterfeit, copy, or colorable imitation of a mark registered
446 under this chapter:
447 (i) without the consent of the registrant; and
448 (ii) in connection with the sale, distribution, offering for sale, or advertising of any
449 goods or services on or in connection with which that use is likely to cause confusion, mistake,
450 or to deceive as to the source of origin, nature, or quality of those goods or services; or
451 (b) reproduces, counterfeits, copies, or colorably imitates any mark and applies the
452 reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages,
453 wrappers, receptacles, or advertisements intended to be used upon or in connection with the
454 sale or other distribution in this state of goods or services.
455 (2) Under Subsection (1)(b), the registrant is not entitled to recover profits or damages
456 unless the act described in Subsection (1)(b) has been committed with the intent:
457 (a) to cause confusion or mistake; or
458 (b) to deceive.
459 (3) In a civil action for a violation of Section 70-3a-309 :
460 (a) the plaintiff may recover court costs and reasonable attorney fees; and
461 (b) the plaintiff may elect, at any time before final judgment is entered by the district

462 court, to recover, instead of actual damages and profits, an award of statutory damages in the
463 amount of not less than $1,000 and not more than $100,000 per domain name, as the court
464 considers just.
465 (4) Statutory damages awarded under Subsection (3)(b) are presumed to be $100,000
466 per domain name if there is a pattern and practice of infringements committed willfully for
467 commercial gain.
468 Section 15. Effective date.
469 This bill takes effect on July 1, 2010, except that Sections 70-3a-309 and 70-3a-402
470 take effect on May 11, 2010.




Legislative Review Note
as of 11-18-09 5:19 PM

Office of Legislative Research and General Counsel