Law:Title 2. Competition And Trade Practices (Texas)

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Contents

Chapter 15. Monopolies, Trusts And Conspiracies In Restraint Of Trade

Subchapter A. General Provisions And Prohibited Restraints

Section  15.01.  Title Of Act.

This Act shall be known and may be cited as the Texas Free Enterprise and Antitrust Act of 1983.

Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, Sec. 1, eff. Aug. 29, 1983.



Section  15.02.  Applicability Of Provisions.

(a) The provisions of this Act are cumulative of each other and of any other provision of law of this state in effect relating to the same subject. Among other things, the provisions of this Act preserve the constitutional and common law authority of the attorney general to bring actions under state and federal law.

(b)  If any of the provisions of this Act are held invalid, the remainder shall not be affected as a result; nor shall the application of the provision held invalid to persons or circumstances other than those as to which it is held invalid be affected as a result.

Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, Sec. 1, eff. Aug. 29, 1983.



Section  15.03.  Definitions.

Except as otherwise provided in Subsection (a) of Section 15.10 of this Act, for purposes of this Act:

(1)  The term "attorney general" means the Attorney General of Texas or any assistant attorney general acting under the direction of the Attorney General of Texas.

(2)  The term "goods" means any property, tangible or intangible, real, personal, or mixed, and any article, commodity, or other thing of value, including insurance.

(3)  The term "person" means a natural person, proprietorship, partnership, corporation, municipal corporation, association, or any other public or private group, however organized, but does not include the State of Texas, its departments, and its administrative agencies or a community center operating under Subchapter A, Chapter 534, Health and Safety Code.

(4)  The term "services" means any work or labor, including without limitation work or labor furnished in connection with the sale, lease, or repair of goods.

(5)  The terms "trade" and "commerce" mean the sale, purchase, lease, exchange, or distribution of any goods or services; the offering for sale, purchase, lease, or exchange of any goods or services; the advertising of any goods or services; the business of insurance; and all other economic activity undertaken in whole or in part for the purpose of financial gain involving or relating to any goods or services.

Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, Sec. 1, eff. Aug. 29, 1983; Acts 1991, 72nd Leg., ch. 242, Sec. 6.01, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 601, Sec. 2, eff. Sept. 1, 1995.



Section  15.04.  Purpose And Construction.

The purpose of this Act is to maintain and promote economic competition in trade and commerce occurring wholly or partly within the State of Texas and to provide the benefits of that competition to consumers in the state. The provisions of this Act shall be construed to accomplish this purpose and shall be construed in harmony with federal judicial interpretations of comparable federal antitrust statutes to the extent consistent with this purpose.

Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, Sec. 1, eff. Aug. 29, 1983; Acts 1991, 72nd Leg., ch. 242, Sec. 6.02, eff. Sept. 1, 1991.



Section  15.05.  Unlawful Practices.

(a) Every contract, combination, or conspiracy in restraint of trade or commerce is unlawful.

(b)  It is unlawful for any person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or commerce.

(c)  It is unlawful for any person to sell, lease, or contract for the sale or lease of any goods, whether patented or unpatented, for use, consumption, or resale or to fix a price for such use, consumption, or resale or to discount from or rebate upon such price, on the condition, agreement, or understanding that the purchaser or lessee shall not use or deal in the goods of a competitor or competitors of the seller or lessor, where the effect of the condition, agreement, or understanding may be to lessen competition substantially in any line of trade or commerce.

(d)  It is unlawful for any person to acquire, directly or indirectly, the whole or any part of the stock or other share capital or the assets of any other person or persons, where the effect of such acquisition may be to lessen competition substantially in any line of trade or commerce.

This subsection shall not be construed:

(1)  to prohibit the purchase of stock or other share capital of another person where the purchase is made solely for investment and does not confer control of that person in a manner that could substantially lessen competition;

(2)  to prevent a corporation from forming subsidiary or parent corporations for the purpose of conducting its immediately lawful business, or any natural and legitimate branch extensions of such business, or from owning and holding all or a part of the stock or other share capital of a subsidiary, or transferring all or part of its stock or other share capital to be owned and held by a parent, where the effect of such a transaction is not to lessen competition substantially;

(3)  to affect or impair any right previously legally acquired; or

(4)  to apply to transactions duly consummated pursuant to authority given by any statute of this state or of the United States or pursuant to authority or approval given by any regulatory agency of this state or of the United States under any constitutional or statutory provisions vesting the agency with such power.

(e)  It is unlawful for an employer and a labor union or other organization to agree or combine so that:

(1)  a person is denied the right to work for an employer because of membership or nonmembership in the labor union or other organization; or

(2)  membership or nonmembership in the labor union or other organization is made a condition of obtaining or keeping a job with the employer.

(f)  It is not unlawful for:

(1)  employees to agree to quit their employment or to refuse to deal with tangible personal property of their immediate employer, unless their refusal to deal with tangible personal property of their immediate employer is intended to induce or has the effect of inducing that employer to refrain from buying or otherwise acquiring tangible personal property from a person; or

(2)  persons to agree to refer for employment a migratory worker who works on seasonal crops if the referral is made irrespective of whether or not the worker belongs to a labor union or organization.

(g)  Nothing in this section shall be construed to prohibit activities that are exempt from the operation of the federal antitrust laws, 15 U.S.C. Section 1 et seq., except that an exemption otherwise available under the McCarran-Ferguson Act (15 U.S.C. Sections 1011-1015) does not serve to exempt activities under this Act. Nothing in this section shall apply to actions required or affirmatively approved by any statute of this state or of the United States or by a regulatory agency of this state or of the United States duly acting under any constitutional or statutory authority vesting the agency with such power.

(h)  In any lawsuit alleging a contract, combination, or conspiracy to fix prices, evidence of uniform prices alone shall not be sufficient to establish a violation of Subsection (a) of Section 15.05.

(i)  In determining whether a restraint related to the sale or delivery of professional services is reasonable, except in cases involving price fixing, or other per se violations, the court may consider, but shall not reach its decision solely on the basis of, criteria which include: (1) whether the activities involved maintain or improve the quality of such services to benefit the public interest; (2) whether the activities involved limit or reduce the cost of such services to benefit the public interest. For purposes of this subsection, the term "professional services" means services performed by any licensed accountant, physician, or professional engineer in connection with his or her professional employment or practice.

Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, Sec. 1, eff. Aug. 29, 1983; Acts 1991, 72nd Leg., ch. 242, Sec. 6.02, eff. Sept. 1, 1991.



Subchapter B. Procedure And Evidence

Section  15.10.  Civil Investigative Demands.

(a) Definitions. For purposes of this section:

(1)  The terms "antitrust investigation" and "investigation" mean any inquiry conducted by the attorney general for the purpose of ascertaining whether any person is or has been engaged in or is actively preparing to engage in activities which may constitute an antitrust violation.

(2)  The term "antitrust violation" means any act or omission in violation of any of the prohibitions contained in Section 15.05 of this Act or in violation of any of the antitrust laws set forth in Subsection (a) of Section 12 of Title 15, the United States Code.

(3)  The terms "civil investigative demand" and "demand" mean any demand issued by the attorney general under Subsection (b) of this section.

(4)  The terms "documentary material" and "material" include the original or any identical copy and all nonidentical copies of any contract, agreement, book, booklet, brochure, pamphlet, catalog, magazine, notice, announcement, circular, bulletin, instruction, minutes, agenda, study, analysis, report, graph, map, chart, table, schedule, note, letter, telegram, telephone or other message, product of discovery, magnetic or electronic recording, and any other written, printed, or recorded matter.

(5)  The term "person" means a natural person, proprietorship, partnership, corporation, municipal corporation, association, or any other public or private group, however organized, and includes any person acting under color or authority of state law.

(6)  The term "product of discovery" includes without limitation the original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature; any digest, analysis, selection, compilation, or other derivation thereof, and any index or manner of access thereto.

(b)  Authority to Issue Demand. Whenever the attorney general has reason to believe that any person may be in possession, custody, or control of any documentary material or may have any information relevant to a civil antitrust investigation, the attorney general may, prior to the institution of a civil proceeding, issue in writing and serve upon such person a civil investigative demand requiring the person to produce such documentary material for inspection and copying, to answer in writing written interrogatories, to give oral testimony, or to provide any combination of such material, answers, and testimony; provided, however, that the attorney general may not issue and serve a demand for documentary material upon a proprietorship or partnership whose annual gross income does not exceed $5 million.

(c)  Contents of Demand.

(1)  Each demand shall describe the nature of the activities that are the subject of the investigation and shall set forth each statute and section of that statute that may have been or may be violated as a result of such activities. Each demand shall advise the person upon whom the demand is to be served that the person has the right to object to the demand as provided for in this section.

(2)  Each demand for production of documentary material shall:

(A)  describe the class or classes of material to be produced with reasonable specificity so that the material demanded is fairly identified;

(B)  prescribe a return date or dates which will provide a reasonable period of time within which the material is to be produced; and

(C)  identify the individual or individuals acting on behalf of the attorney general to whom the material is to be made available for inspection and copying.

(3)  Each demand for answers to written interrogatories shall:

(A)  propound the interrogatories with definiteness and certainty;

(B)  prescribe a date or dates by which answers to interrogatories shall be submitted; and

(C)  identify the individual or individuals acting on behalf of the attorney general to whom the answers should be submitted.

(4)  Each demand for the giving of oral testimony shall:

(A)  prescribe a reasonable date, time, and place at which the testimony shall begin; and

(B)  identify the individual or individuals acting on behalf of the attorney general who will conduct the examination.

(5)  No demand for any product of discovery may be returned until 20 days after the attorney general serves a copy of the demand upon the person from whom the discovery was obtained.

(d)  Protected Material and Information.

(1)  A demand may require the production of documentary material, the submission of answers to written interrogatories, or the giving of oral testimony only if the material or information sought would be discoverable under the Texas Rules of Civil Procedure or other state law relating to discovery.

(2)  Any demand for a product of discovery supercedes any inconsistent order, rule, or provision of law (other than this subchapter) preventing or restraining disclosure of such product of discovery; provided, however, that voluntary disclosure of a product of discovery under this section does not constitute a waiver of any right or privilege, including any right or privilege which may be invoked to resist discovery of trial preparation materials, to which the person making the disclosure may be entitled.

(e)  Service; Proof of Service.

(1)  Service of any demand or of any petition filed under Subsection (f) or (h) of this section may be made upon any natural person by delivering a duly executed copy of the demand or petition to the person to be served or by mailing such copy by registered or certified mail, return receipt requested, to such person at his or her residence or principal office or place of business.

(2)  Service of any demand or of any petition filed under Subsection (f) or (h) of this section may be made upon any person other than a natural person by delivering a duly executed copy of the demand or petition to a person to whom delivery would be appropriate under state law if the demand or petition were process in a civil suit.

(3)  A verified return by the individual serving any demand or any petition filed under Subsection (f) or (h) setting forth the manner of service shall be proof of such service. In the case of service by registered or certified mail, the return shall be accompanied by the return post office receipt of delivery of the demand or petition.

(f)  Petition for Order Modifying or Setting Aside Demand. At any time before the return date specified in a demand or within 20 days after the demand has been served, whichever period is shorter, the person who has been served and, in the case of a demand for a product of discovery, the person from whom the discovery was obtained may file a petition for an order modifying or setting aside the demand in the district court in the county of the person's residence or principal office or place of business or in a district court of Travis County. Any such petition shall specify each ground upon which the petitioner relies in seeking the relief sought. The petition may be based upon any failure of such demand to comply with the provisions of this section or upon any constitutional or other legal right or privilege of the petitioner. The petitioner shall serve a copy of the petition upon the attorney general. The attorney general may submit an answer to the petition. In ruling on the petition, the court shall presume absent evidence to the contrary that the attorney general issued the demand in good faith and within the scope of his or her authority.

(g)  Compliance With Demand.

(1)  A person on whom a demand is served shall comply with the terms of the demand unless otherwise provided by court order.

(2)  The time for compliance with the demand in whole or in part shall not run during the pendency of any petition filed under Subsection (f) of this section; provided, however, that the petitioner shall comply with any portions of the demand not sought to be modified or set aside.

(3)  Documentary Material.

(A)  Any person upon whom any demand for the production of documentary material has been duly served under this section shall make such material available to the attorney general for inspection and copying during normal business hours on the return date specified in the demand at the person's principal office or place of business or as otherwise may be agreed upon by the person and the attorney general. The attorney general shall bear the expense of any copying. The person may substitute copies for originals of all or part of the requested documents so long as the originals are made available for inspection. The person shall indicate in writing which if any of the documents produced contain trade secrets or confidential information.

(B)  The production of documentary material in response to any demand shall be made under a sworn certificate in such form as the demand designates by a natural person having knowledge of the facts and circumstances relating to such production to the effect that all of the requested material in the possession, custody, or control of the person to whom the demand is directed has been produced.

(4)  Interrogatories.

(A)  Each interrogatory in any demand duly served under this section shall be answered separately and fully in writing, unless it is objected to, in which case the basis for the objection shall be set forth in lieu of an answer. The person shall indicate in writing which if any of the answers contain trade secrets or confidential information.

(B)  Answers to interrogatories shall be submitted under a sworn certificate in such form as the related demand designates by a natural person having knowledge of the facts and circumstances relating to the preparation of the answers to the effect that all of the requested information in the possession, custody, control, or knowledge of the person to whom the demand is directed has been set forth fully and accurately.

(5)  Oral Examination.

(A)  The examination of any person pursuant to a demand for oral testimony duly served under this section shall be taken before any person authorized to administer oaths and affirmations by the laws of Texas or the United States. The person before whom the testimony is to be taken shall put the witness on oath or affirmation and shall personally or by someone acting under his or her direction and in his or her presence record the witness's testimony. At the expense of the attorney general, the testimony shall be taken stenographically and may be transcribed.

(B)  The oral testimony of any person taken pursuant to a demand served under this section shall be taken in the county where the person resides, is found, transacts business, or in such other place as may be agreed upon by the person and the attorney general.

(C)  Any person compelled to appear under a demand for oral testimony under this section may be accompanied, represented, and advised by counsel. Counsel may advise such person in confidence, either upon the request of such person or upon counsel's own initiative, with respect to any question arising in connection with the examination.

(D)  The individual conducting the examination on behalf of the attorney general shall exclude from the place of examination all other persons except the person being examined, the person's counsel, the counsel of the person to whom the demand has been issued, the person before whom the testimony is to be taken, any stenographer taking the testimony, and any persons assisting the individual conducting the examination.

(E)  During the examination, the person being examined or his or her counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may properly be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privilege, including the privilege against self-incrimination. Neither such person nor his or her counsel shall otherwise object to or refuse to answer any question or interrupt the oral examination. If the person refuses to answer any question, the attorney general may petition the district court in the county where the examination is being conducted for an order compelling the person to answer the question.

(F)  If and when the testimony has been fully transcribed, the person before whom the testimony was taken shall promptly transmit the transcript of the testimony to the witness and a copy of the transcript to the attorney general. The witness shall have a reasonable opportunity to examine the transcript and make any changes in form or substance accompanied by a statement of the reasons for such changes. The witness shall then sign and return the transcript, unless he or she is ill, cannot be found, refuses to sign, or in writing waives the signing. If the witness does not sign the transcript within 15 days of receiving it, the person before whom the testimony has been given shall sign it and state on the record the reason, if known, for the witness's failure to sign. The officer shall then certify on the transcript that the witness was duly sworn and that the transcript is a true record of the testimony given by the witness and promptly transmit a copy of the certified transcript to the attorney general.

(G)  Upon request, the attorney general shall furnish a copy of the certified transcript to the witness.

(H)  The witness shall be entitled to the same fees and mileage that are paid to witnesses in the district courts of Texas.

(h)  Failure To Comply With Demand.

(1)  Petition for Enforcement. Whenever any person fails to comply with any demand duly served on such person under this section, the attorney general may file in the district court in the county in which the person resides, is found, or transacts business and serve on the person a petition for an order of the court for enforcement of this section. If the person transacts business in more than one county, the petition shall be filed in the county of the person's principal office or place of business in the state or in any other county as may be agreed upon by the person and the attorney general.

(2)  Deliberate Noncompliance. Any person, who, with intent to avoid, evade, or prevent compliance in whole or part with a demand issued under this section, removes from any place, conceals, withholds, destroys, mutilates, alters, or by any other means falsifies any documentary material or otherwise provides inaccurate information is guilty of a misdemeanor and on conviction is punishable by a fine of not more than $5,000 or by confinement in county jail for not more than one year or by both.

(i)  Disclosure and Use of Material and Information.

(1)  Except as provided in this section or ordered by a court for good cause shown, no documentary material, answers to interrogatories, or transcripts of oral testimony, or copies or contents thereof, shall be available for examination or used by any person without the consent of the person who produced the material, answers, or testimony and, in the case of any product of discovery, of the person from whom the discovery was obtained.

(2)  The attorney general may make available for inspection or prepare copies of documentary material, answers to interrogatories, or transcripts of oral testimony in his or her possession as he or she determines may be required by the state in the course of any investigation or a judicial proceeding in which the state is a party.

(3)  The attorney general may make available for inspection or prepare copies of documentary material, answers to interrogatories, or transcripts of oral testimony in his or her possession as he or she determines may be required for official use by any officer of the State of Texas or of the United States charged with the enforcement of the laws of the State of Texas or the United States; provided that any material disclosed under this subsection may not be used for criminal law enforcement purposes.

(4)  Upon request, the attorney general shall make available copies of documentary material, answers to interrogatories, and transcripts of oral testimony for inspection by the person who produced such material or information and, in the case of a product of discovery, the person from whom the discovery was obtained or by any duly authorized representative of the person, including his or her counsel.

(5)  Not later than 15 days prior to disclosing any documentary material or answers to written interrogatories designated as containing trade secrets or confidential information under this subsection, the attorney general shall notify the person who produced the material of the attorney general's intent to make such disclosure. The person who produced the documentary material or answers to written interrogatories may petition a district court in any county of this state in which the person resides, does business, or maintains its principal office for a protective order limiting the terms under which the attorney general may disclose such trade secrets or confidential information.

(6)  Upon written request, the attorney general shall return documentary material produced under this section in connection with an antitrust investigation to the person who produced it whenever:

(A)  any case or proceeding before any court arising out of the investigation has been completed; or

(B)  the attorney general has decided after completing an examination and analysis of such material not to institute any case or proceeding before a court in connection with the investigation.

(j)  Jurisdiction. Whenever any petition is filed in the district court in any county as provided for in this section, the court shall have jurisdiction to hear and determine the matter presented and to enter any order or orders required to implement the provisions of this section. Any final order is subject to appeal. Failure to comply with any final order entered by a court under this section is punishable by the court as a contempt of the order.

(k)  Nonexclusive Procedures. Nothing in this section shall preclude the attorney general from using procedures not specified in the section in conducting an antitrust investigation; provided, however, that in conducting such an investigation, the attorney general shall use the procedures set forth in this section in lieu of those set forth in Article 1302-5.01 through Article 1302-5.06, Texas Miscellaneous Corporation Laws Act.

Added by Acts 1983, 68th Leg., p. 3019, ch. 519, Sec. 2, eff. Aug. 29, 1983.



Section  15.11.  Party To Suit May Subpoena Witness.

(a) A party to a suit brought to enforce any of the prohibitions in Section 15.05 of this Act or to enforce the laws conserving natural resources may apply to the clerk of the court in which the suit is pending to subpoena a witness located anywhere in the state. On receipt of the application, the clerk shall issue the subpoena applied for but may not issue more than five subpoenas for a party without first obtaining the court's written approval.

(b)  A witness subpoenaed under Subsection (a) of this section who fails to appear and testify in compliance with the subpoena is guilty of contempt of court and may be fined not more than $100 and attached and imprisoned in the county jail until he or she appears in court and testifies as required.

Added by Acts 1983, 68th Leg., p. 3019, ch. 519, Sec. 2, eff. Aug. 29, 1983.



Section  15.12.  Additional Procedures.

In addition to the procedures set forth in this subchapter, the attorney general and any other party to a suit brought by the attorney general to enforce any of the prohibitions in Section 15.05 of this Act may request discovery and production of documents and other things, serve written interrogatories, and subpoena and depose witnesses in accordance with the applicable provisions of the Texas Rules of Civil Procedure and other state law relating to discovery.

Amended by Acts 1983, 68th Leg., p. 3019, ch. 519, Sec. 2, eff. Aug. 29, 1983.



Section  15.13.  Immunity From Criminal Prosecution. (a) A

pplication by Attorney General. If a person upon whom an investigative demand or request for discovery has been properly served pursuant to Section 15.10, 15.11, or 15.12 of this Act refuses or is likely to refuse to comply with the demand or request on the basis of his or her privilege against self-incrimination, the attorney general may apply to a district court in the county in which the person is located for an order granting the person immunity from prosecution and compelling the person's compliance with the demand or request.

(b)  Order Granting Immunity and Compelling Testimony and Production. Upon receipt of an application filed under Subsection (a) of this section, the court may issue an order granting the person immunity from prosecution and requiring the person to comply with the demand or request notwithstanding his or her claim of privilege. The order shall explain the scope of protection afforded by it.

(c)  Effectiveness of Order. An order may be issued under Subsection (b) of this section prior to the assertion of the privilege against self-incrimination but shall not be effective until the person to whom it is directed asserts the privilege and is informed of the order.

(d)  Compliance with Order. A person who has been informed of an order issued by a court under this section compelling his or her testimony or production of material may not refuse to comply with the order on the basis of his or her privilege against self-incrimination. A person who complies with the order may not be criminally prosecuted for or on account of any act, transaction, matter, or thing about which he or she is ordered to testify or produce unless the alleged offense is perjury or failure to comply with the order. Failure to comply with the order may be punished by the court as contempt of the order.

Amended by Acts 1983, 68th Leg., p. 3019, ch. 519, Sec. 2, eff. Aug. 29, 1983.



Section  15.16.  Declaratory Judgment Action.

(a) A person (other than a foreign corporation not having a permit or certificate of authority to do business in this state) uncertain of whether or not his or her action or proposed action violates or will violate the prohibitions contained in Section 15.05 of this Act may file suit against the state for declaratory judgment, citing this section as authority, in one of the Travis County district courts.

(b)  Citation and all process in the suit shall be served on the attorney general, who shall represent the state. The petition shall describe in detail the person's action or proposed action and all other relevant facts, and the court in its declaratory judgment shall fully recite the action or proposed action and other facts considered.

(c)  A declaratory judgment granted under this section which rules that action or proposed action does not violate the prohibitions contained in Section 15.05 of this Act:

(1)  shall be strictly construed and may not be extended by implication to an action or fact not recited in the judgment;

(2)  does not bind the state with reference to a person not a party to the suit in which the judgment was granted; and

(3)  does not estop the state from subsequently establishing a violation of the prohibitions contained in Section 15.05 of this Act based on an action or fact not recited in the declaratory judgment, which action or fact, when combined with an action or fact recited in the judgment, constitutes a violation of the prohibitions contained in Section 15.05 of this Act.

(d)  A person filing suit under this section shall pay all costs of the suit.

Amended by Acts 1983, 68th Leg., p. 3019, ch. 519, Sec. 2, eff. Aug. 29, 1983.



Subchapter C. Enforcement

Section  15.20.  Civil Suits By The State.

(a) Suit to Collect Civil Fine. The attorney general may file suit in district court in Travis County or in any county in the State of Texas in which any of the named defendants resides, does business, or maintains its principal office on behalf of the State of Texas to collect a civil fine from any person, other than a municipal corporation, whom the attorney general believes has violated any of the prohibitions in Subsection (a), (b), or (c) of Section 15.05 of this Act. Every person adjudged to have violated any of these prohibitions shall pay a fine to the state not to exceed $1 million if a corporation, or, if any other person, $100,000.

(b)  Suit for Injunctive Relief. The attorney general may file suit against any person, other than a municipal corporation, in district court in Travis County, or in any county in the State of Texas in which any of the named defendants resides, does business, or maintains its principal office on behalf of the State of Texas to enjoin temporarily or permanently any activity or contemplated activity that violates or threatens to violate any of the prohibitions in Section 15.05 of this Act. In any such suit, the court shall apply the same principles as those generally applied by courts of equity in suits for injunctive relief against threatened conduct that would cause injury to business or property. In any such suit in which the state substantially prevails on the merits, the state shall be entitled to recover the cost of suit.

Upon finding a violation of the prohibition against acquiring the stock, share capital, or assets of a person in Subsection (d) of Section 15.05 of this Act, the court shall, upon further finding that no other remedy will eliminate the lessening of competition, order the divestiture or other disposition of the stock, share capital, or assets and shall prescribe a reasonable time, manner, and degree of the divestiture or other disposition.

(c)  No suit filed under Subsection (a) or (b) of this section may be transferred to another county except on order of the court.

(d)  Nothing in this section shall be construed to limit the constitutional or common law authority of the attorney general to bring actions under state and federal law.

Amended by Acts 1983, 68th Leg., p. 3034, ch. 519, Sec. 3, eff. Aug. 29, 1983.



Section  15.21.  Suits By Injured Persons Or Governmental Entities.

(a) Suit to Recover Damages.

(1)  Any person or governmental entity, including the State of Texas and any of its political subdivisions or tax-supported institutions, whose business or property has been injured by reason of any conduct declared unlawful in Subsection (a), (b), or (c) of Section 15.05 of this Act may sue any person, other than a municipal corporation, in district court in any county of this state in which any of the named defendants resides, does business, or maintains its principal office or in any county in which any of the named plaintiffs resided at the time the cause of action or any part thereof arose and shall recover actual damages sustained, interest on actual damages for the period beginning on the date of service of such person's pleading setting forth a claim under the antitrust laws and ending on the date of judgment (the rate of such interest to be in accordance with Texas law regarding postjudgment interest rates and the amount of interest to be adjusted by the court if it finds that the award of all or part of such interest is unjust in the circumstances), and the cost of suit, including a reasonable attorney's fee; provided, however, that if the trier of fact finds that the unlawful conduct was willful or flagrant, it shall increase the recovery to threefold the damages sustained and the cost of suit, including a reasonable attorney's fee; provided that interest on actual damages as specified above may not be recovered when recovered damages are increased threefold.

(2)  Any person or governmental entity who obtains a judgment for damages under 15 U.S.C. Section 15 or any other provision of federal law comparable to this subsection may not recover damages in a suit under this subsection based on substantially the same conduct that was the subject of the federal suit.

(3)  On a finding by the court that an action under this section was groundless and brought in bad faith or for the purpose of harassment, the court shall award to the defendant or defendants a reasonable attorney's fee, court costs, and other reasonable expenses of litigation.

(b)  Suit for Injunctive Relief. Any person or governmental entity, including the State of Texas and any of its political subdivisions or tax-supported institutions, whose business or property is threatened with injury by reason of anything declared unlawful in Subsection (a), (b), or (c) of Section 15.05 of this Act may sue any person, other than a municipal corporation, in district court in any county of this state in which any of the named defendants resides, does business, or maintains its principal office or in any county in which any of the named plaintiffs resided at the time the cause of action or any part thereof arose to enjoin the unlawful practice temporarily or permanently. In any such suit, the court shall apply the same principles as those generally applied by courts of equity in suits for injunctive relief against threatened conduct that would cause injury to business or property. In any such suit in which the plaintiff substantially prevails on the merits, the plaintiff shall be entitled to recover the cost of suit, including a reasonable attorney's fee based on the fair market value of the attorney services used.

(c)  Copies of Complaints to Attorney General. Any person or governmental entity filing suit under this section shall mail a copy of the complaint to the Attorney General of Texas. The attorney general as representative of the public may intervene in the action by filing a notice of intervention with the court before which the action is pending and serving copies of the notice on all parties to the action. The penalty for failure to comply with this subsection shall be a monetary fine not in excess of $200. The attorney general may file suit to recover the fine on behalf of the state in the district court in which the private suit has been brought.

Amended by Acts 1983, 68th Leg., p. 3034, ch. 519, Sec. 3, eff. Aug. 29, 1983.



Section  15.22.  Criminal Suits.

(a) Every person, other than a municipal corporation, who acts in violation of any of the prohibitions in Section 15.05(a) or (b) shall be deemed guilty of a felony and upon conviction shall be punished by confinement in the Texas Department of Criminal Justice for a term of not more than three years or by a fine not to exceed $5,000 or by both.

(b)  A district attorney or criminal district attorney may file criminal suit to enforce the provisions in Subsection (a) of this section in district court in Travis County or in any county in which any of the acts that allegedly have contributed to a violation of any of the prohibitions in Subsections (a) and (b) of Section 15.05 of this Act are alleged to have occurred or to be occurring.

Amended by Acts 1983, 68th Leg., p. 3034, ch. 519, Sec. 3, eff. Aug. 29, 1983.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.010, eff. September 1, 2009.



Section  15.24.  Judgment In Favor Of The State Evidence In Action.

A final judgment rendered in an action brought under Section 15.20 or 15.22 of this Act to the effect that a defendant or defendants have violated any of the prohibitions in Section 15.05 of this Act is prima facie evidence against such defendant or defendants in any action brought under Section 15.21 as to all matters with respect to which the judgment would be an estoppel between the parties to the suit. This section shall not apply to consent judgments or decrees entered before any testimony has been taken.

Added by Acts 1983, 68th Leg., p. 3034, ch. 519, Sec. 3, eff. Aug. 29, 1983.



Section  15.25.  Limitation Of Actions.

(a) Any suit to recover damages under Section 15.21 of this Act is barred unless filed within four years after the cause of action accrued or within one year after the conclusion of any action brought by the state under Section 15.20 or 15.22 of this Act based in whole or in part on the same conduct, whichever is longer. For the purpose of this subsection, a cause of action for a continuing violation is considered to accrue at any and all times during the period of the violation.

(b)  No suit under this Act shall be barred on the grounds that the activity or conduct complained of in any way affects or involves interstate or foreign commerce. It is the intent of the legislature to exercise its powers to the full extent consistent with the constitutions of the State of Texas and the United States.

Added by Acts 1983, 68th Leg., p. 3034, ch. 519, Sec. 3, eff. Aug. 29, 1983.



Section  15.26.  Jurisdiction. Whenever Any

suit or petition is filed in the district court in any county in the State of Texas as provided for in Section 15.10, 15.20, 15.21, or 15.22 of this Act, the court shall have jurisdiction and venue to hear and determine the matter presented and to enter any order or orders required to implement the provisions of this Act. Once suit is properly filed, it may be transferred to another county upon order of the court for good cause shown.

Added by Acts 1983, 68th Leg., p. 3034, ch. 519, Sec. 3, eff. Aug. 29, 1983.



Subchapter D. Recovery Of Damages Pursuant To Federal Antitrust Laws

Section  15.40.  Authority, Powers, And Duties Of Attorney General.

(a) The attorney general may bring an action on behalf of the state or of any of its political subdivisions or tax supported institutions to recover the damages provided for by the federal antitrust laws, Title 15, United States Code, provided that the attorney general shall notify in writing any political subdivision or tax supported institution of his intention to bring any such action on its behalf, and at any time within 30 days thereafter, such political subdivision or tax supported institution may, by formal resolution of its governing body or as otherwise specifically provided by applicable law, withdraw the authority of the attorney general to bring the intended action. In any action brought pursuant to this section on behalf of any political subdivision or tax supported institution of the state, the state shall retain for deposit in the general revenue fund of the State Treasury, out of the proceeds, if any, resulting from such action, an amount equal to the expense incurred by the state in the investigation and prosecution of such action.

(b)  In any action brought by the attorney general pursuant to the federal antitrust laws for the recovery of damages by the estate or any of its political subdivisions or tax supported institutions, in addition to his other powers and authority the attorney general may enter into contracts relating to the investigation and the prosecution of such action with any other party who could bring a similar action or who has brought such an action for the recovery of damages and with whom the attorney general finds it advantageous to act jointly, or to share common expenses or to cooperate in any manner relative to such action. In any such action the attorney general may undertake, among other things, either to render legal services as special counsel to, or to obtain the legal services of special counsel from, any department or agency of the United States, any other state or any department or agency thereof, any county, city, public corporation or public district of this state or of any other state, that has brought or intends to bring a similar action for the recovery of damages, or their duly authorized legal representatives in such action.

Added by Acts 1969, 61st Leg., p. 1708, ch. 559, Sec. 1, eff. June 10, 1969.



Subchapter E. Covenants Not To Compete

Section  15.50.  Criteria For Enforceability Of Covenants Not To Compete.

(a) Notwithstanding Section 15.05 of this code, and subject to any applicable provision of Subsection (b), a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.

(b)  A covenant not to compete relating to the practice of medicine is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements:

(1)  the covenant must:

(A)  not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;

(B)  provide access to medical records of the physician's patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and

(C)  provide that any access to a list of patients or to patients' medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;

(2)  the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and

(3)  the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.

(c)  Subsection (b) does not apply to a physician's business ownership interest in a licensed hospital or licensed ambulatory surgical center.

Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 1, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1574, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.729, eff. Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 971, Sec. 1, eff. September 1, 2009.



Section  15.51.  Procedures And Remedies In Actions To Enforce Covenants Not To Compete.

(a) Except as provided in Subsection (c) of this section, a court may award the promisee under a covenant not to compete damages, injunctive relief, or both damages and injunctive relief for a breach by the promisor of the covenant.

(b)  If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria specified by Section 15.50 of this code. If the agreement has a different primary purpose, the promisor has the burden of establishing that the covenant does not meet those criteria. For the purposes of this subsection, the "burden of establishing" a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence.

(c)  If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed, except that the court may not award the promisee damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief. If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, the promisor establishes that the promisee knew at the time of the execution of the agreement that the covenant did not contain limitations as to time, geographical area, and scope of activity to be restrained that were reasonable and the limitations imposed a greater restraint than necessary to protect the goodwill or other business interest of the promisee, and the promisee sought to enforce the covenant to a greater extent than was necessary to protect the goodwill or other business interest of the promisee, the court may award the promisor the costs, including reasonable attorney's fees, actually and reasonably incurred by the promisor in defending the action to enforce the covenant.

Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 2, eff. Sept. 1, 1993.



Section  15.52.  Preemption Of Other Law.

The criteria for enforceability of a covenant not to compete provided by Section 15.50 of this code and the procedures and remedies in an action to enforce a covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any other criteria for enforceability of a covenant not to compete or procedures and remedies in an action to enforce a covenant not to compete under common law or otherwise.

Added by Acts 1993, 73rd Leg., ch. 965, Sec. 3, eff. Sept. 1, 1993.

Chapter 16. Trademarks

Subchapter A. General Provisions

Section  16.01.  Definitions.

(a) In this chapter, unless the context requires a different definition,

(1)  "applicant" means the person applying for registration of a mark under this chapter and includes his legal representative, successor, assignee, and predecessor in title to the mark sought to be registered;

(2)  "mark" includes service mark and trademark;

(3)  "registrant" means the person to whom a registration has been issued under this chapter and includes his legal representative, successor, assignee, and predecessor in title to the registration;

(4)  "service mark" means a word, name, symbol, device, slogan or any combination thereof which, whether registered or not, has been adopted and used by a person to identify his services and distinguish them from the services of others, and includes the titles, designations, character names, and distinctive features of broadcast or other advertising;

(5)  "trademark" means a word, name, symbol, device, slogan or any combination thereof which, whether registered or not, has been adopted and used by a person to identify his goods and distinguish them from the goods manufactured or sold by others; and

(6)  "trade name" includes individual name, surname, firm name, corporate name, and lawfully adopted name or title used by a person to identify his business, vocation, or occupation.

(b)  This chapter does not apply to the registration or use of livestock brands or other indicia of ownership of goods which do not qualify as a "mark" as defined in this chapter.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.02.  When Mark Considered To Be Used.

(a) A mark is considered to be used in this state in connection with goods when

(1)  it is placed on

(A)  the goods;

(B)  containers of the goods;

(C)  displays associated with the goods; or

(D)  tags or labels affixed to the goods; and

(2)  the goods are sold, displayed for sale, or otherwise publicly distributed in this state.

(b)  A mark is considered to be used in this state in connection with services when

(1)  it is used or displayed in this state in connection with selling or advertising the services; and

(2)  the services are rendered in this state.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Subchapter B. Registration Of Mark

Section  16.08.  Registrable Marks.

(a) A mark in actual use in connection with the applicant's goods or services, which distinguishes his goods or services from those of others, is registrable unless it

(1)  is, or includes matter which is, immoral, deceptive, or scandalous;

(2)  may disparage, or falsely suggest a connection with, or bring into contempt or disrepute

(A)  a person, whether living or dead;

(B)  an institution;

(C)  a belief; or

(D)  a national symbol;

(3)  depicts or simulates the flag, coat of arms, or other insignia of

(A)  the United States;

(B)  a state;

(C)  a municipality; or

(D)  a foreign nation;

(4)  is or includes the name, signature, or portrait of a living individual who has not consented in writing to its registration;

(5)  is

(A)  merely descriptive or deceptively misdescriptive of the applicant's goods or services;

(B)  primarily geographically descriptive or deceptively misdescriptive of the applicant's goods or services; or

(C)  primarily merely a surname; or

(6)  is likely to cause confusion or mistake, or to deceive, because, when applied to the applicant's goods or services, it resembles another person's unabandoned mark registered in this state.

(b)  Subsection (a)(5) of this section does not prevent the registration of a mark that has become distinctive as applied to the applicant's goods or services. The secretary of state may accept as evidence that a mark has become distinctive as applied to the applicant's goods or services proof of substantially exclusive and continuous use of the mark by the applicant in this state for the five years next preceding the date on which the applicant filed his application for registration.

(c)  A trade name is not registrable under this chapter. However, if a trade name is also a service mark or trademark, as defined in this chapter, it is registrable as a service mark or trademark.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.09.  Classification Of Goods And Services.

(a) The secretary of state shall adopt rules establishing a classification of goods and services for the convenient administration of this chapter. The classifications established do not limit or expand an applicant's or registrant's rights. To the extent practicable, the classification of goods and services should conform to the classification adopted by the United States Patent and Trademark Office.

(b)  An applicant may include in a single application for registration of a mark all goods or services in connection with which the mark is actually being used and which are in a single class. An applicant may not include in a single application for registration goods or services which are not in a single class.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1989, 71st Leg., ch. 865, Sec. 1, eff. Sept. 1, 1989; Acts 2003, 78th Leg., ch. 168, Sec. 1, eff. Sept. 1, 2003.



Section  16.10.  Application For Registration.

(a) Subject to the limitations prescribed by this chapter, a person may file an application to register a mark in the office of the secretary of state on a form prescribed by the secretary of state.

(b)  The applicant shall include in the application:

(1)  the name and business address of the applicant;

(2)  if the applicant is a corporation, limited partnership, limited liability company, or other business entity, the state of incorporation or organization;

(3)  an appointment of the secretary of state as the applicant's agent for service of process only in suits relating to the registration which may be issued if the applicant:

(A)  is or becomes a:

(i)  nonresident individual, partnership, or association; or

(ii)  foreign corporation, limited partnership, or limited liability company without a certificate of authority to do business in this state; or

(B)  cannot be found in this state;

(4)  the names or a description of the goods or services in connection with which the mark is being used;

(5)  the manner in which the mark is being used in connection with the goods or services;

(6)  the class in which the applicant believes the goods or services belong;

(7)  the date on which the applicant first used the mark anywhere in connection with the goods or services;

(8)  the date on which the applicant first used the mark in this state in connection with the goods or services;

(9)  a statement that the applicant is the owner of the mark, and that, to the best of the applicant's knowledge, no other person is entitled to use the mark in this state:

(A)  in the identical form used by the applicant; or

(B)  in a form that is likely, when used in connection with the goods or services, to cause confusion or mistake, or to deceive, because of its resemblance to the mark used by the applicant;

(10)  a narrative description of the mark; and

(11)  such additional information or documents as the secretary of state may reasonably require.

(c)  The applicant shall:

(1)  prepare and file the application and a copy of the application with the secretary of state; and

(2)  submit as part of the application to the secretary of state:

(A)  two identical specimens or facsimiles of the mark as actually used, one specimen or facsimile with the original application and one specimen or facsimile with the copy;

(B)  a drawing of the mark that complies with any requirement specified by the secretary of state; and

(C)  an application fee of $50 payable to the secretary of state.

(d)  The applicant or the applicant's agent shall sign the application.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1979, 66th Leg., p. 233, ch. 120, Sec. 47, eff. May 9, 1979; Acts 1983, 68th Leg., p. 313, ch. 69, Sec. 6, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1007, Sec. 6, eff. June 19, 1987; Acts 1997, 75th Leg., ch. 248, Sec. 1, eff. Sept. 1, 1997.



Section  16.105.  Examination Of Application.

(a) On the filing of an application for registration and payment of the application fee, the secretary of state shall examine the application for compliance with this chapter.

(b)  The applicant shall provide to the secretary of state additional pertinent information requested by the secretary of state.

(c)  The secretary of state shall examine applications in the order in which the applications are filed, including applications concurrently processed for registration of the same or confusingly similar marks used in connection with the same or similar goods or services.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 2, eff. Sept. 1, 1997.



Section  16.106.  Amendment To Application.

(a) The applicant may make an amendment to the application as reasonably requested by the secretary of state or in response to a rejection or objection to the registration by the secretary of state.

(b)  An amendment to the application, other than an amendment to the date on which the applicant first uses the mark, may be made by the applicant's agent. The secretary of state may require the applicant to execute and submit a new application instead of making an amendment.

(c)  An amendment to the application made to the date on which the applicant first used the mark may not specify a date of use that is after the date on which the application was filed.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 2, eff. Sept. 1, 1997.



Section  16.107.  Disclaimer Of Unregistrable Component.

The secretary of state may require the applicant to disclaim or the applicant may voluntarily disclaim an unregistrable component of a mark that is otherwise registrable. A disclaimer may not prejudice or affect the:

(1)  rights of the applicant or registrant in the disclaimed matter; or

(2)  rights of the applicant or registrant to make an application to register a mark if the disclaimed matter is distinctive of the goods or services of the applicant or registrant.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 2, eff. Sept. 1, 1997.



Section  16.108.  Concurrent Applications For Same Or Similar Mark.

(a) When concurrently processing applications for the same or confusingly similar marks used in connection with the same or similar goods or services, the secretary of state shall give priority to the application that was filed first. If the previously filed application is registered, the secretary of state shall reject the other application.

(b)  The applicant may bring an action for cancellation of the previously issued registration on the ground that the applicant has a prior or superior right to the mark under this chapter.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 2, eff. Sept. 1, 1997.



Section  16.109.  Denial Of Registration.

(a) If the secretary of state finds that the applicant is not entitled to register the mark, the secretary of state shall:

(1)  notify the applicant of the reason for the denial of the application; and

(2)  give the applicant a reasonable amount of time as prescribed by the secretary of state in which to:

(A)  issue a response to the denial; or

(B)  amend the application.

(b)  The applicant may repeat the examination procedures described by Subsection (a) until the earlier of:

(1)  the expiration of the period prescribed by the secretary of state under Subsection (a)(2); or

(2)  the date on which the secretary of state finally refuses registration of the application.

(c)  If the secretary of state finally refuses registration of the mark, the applicant may seek a review of the decision of the secretary of state in accordance with the procedures prescribed by this chapter.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 2, eff. Sept. 1, 1997.



Section  16.11.  Registration By Secretary Of State.

If the application satisfies the requirements of this chapter, and the application fee has been paid, the secretary of state shall:

(1)  endorse on the original and the copy of the application:

(A)  the word "filed"; and

(B)  the date on which the application was filed;

(2)  file the original in his office;

(3)  issue a certificate of registration evidencing registration on the date on which the application was filed;

(4)  attach the copy to the certificate of registration; and

(5)  deliver the certificate of registration with the attached copy of the application to the applicant.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1979, 66th Leg., p. 233, ch. 120, Sec. 48, eff. May 9, 1979; Acts 1997, 75th Leg., ch. 248, Sec. 3, eff. Sept. 1, 1997.



Section  16.12.  Term Of Registration.

(a) The registration of a mark under this chapter is effective for a term of 10 years from the date of registration.

(b)  Repealed by Acts 1997, 75th Leg., ch. 248, Sec. 8, eff. Sept. 1, 1997.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1997, 75th Leg., ch. 248, Sec. 8, eff. Sept. 1, 1997.



Section  16.13.  Notice Of Expiration Of Registration.

(a) During the period beginning 12 months and ending 6 months before the day a registration expires, the secretary of state shall, by writing to the last known address of the registrant under this chapter or under a prior act, notify the registrant of the necessity for renewing or reregistering under Section 16.14 of this code.

(b)  Neither the secretary of state's failure to notify a registrant nor the registrant's nonreceipt of a notice under Subsection (a) of this section

(1)  extends the term of a registration; or

(2)  excuses the registrant's failure to renew or reregister.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.14.  Renewal Of Registration And Reregistration.

(a) The registration of a mark under this chapter may be renewed for an additional 10-year term by filing a renewal application within six months before the day the registration expires. The registrant shall submit to the secretary of state:

(1)  a renewal application stating that:

(A)  the mark is still in use in this state; or

(B)  nonuse of the mark in this state:

(i)  is due to special circumstances which excuse the nonuse; and

(ii)  is not due to an intention to abandon the mark in this state; and

(2)  a renewal application fee of $25 payable to the secretary of state.

(b)  A registrant may renew a registration under Subsection (a) of this section for successive terms of 10 years.

(c)  Repealed by Acts 1997, 75th Leg., ch. 248, Sec. 8, eff. Sept. 1, 1997.

(d)  The renewal application must be signed by the registrant or the registrant's agent.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1983, 68th Leg., p. 313, ch. 69, Sec. 7, eff. Sept. 1, 1983; Acts 1997, 75th Leg., ch. 248, Sec. 4, 8, eff. Sept. 1, 1997.



Section  16.15.  Record, Notice, And Proof Of Registration.

(a) The secretary of state shall keep for public examination a record of all:

(1)  marks registered, reregistered, or renewed under this chapter;

(2)  assignments recorded under Section 16.18 of this code; and

(3)  other instruments recorded under Section 16.19 of this code.

(b)  Registration of a mark under this chapter is constructive notice throughout this state of the registrant's claim of ownership of the mark throughout this state.

(c)  A certificate of registration issued by the secretary of state under this chapter, or a copy of it certified by the secretary of state, is admissible in evidence as prima facie proof of

(1)  the validity of the registration;

(2)  the registrant's ownership of the mark; and

(3)  the registrant's exclusive right to use the mark in commerce in this state in connection with the goods or services specified in the certificate, subject to any conditions and limitations stated in the certificate.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1997, 75th Leg., ch. 248, Sec. 5, eff. Sept. 1, 1997.



Section  16.16.  Cancellation Of Registration.

(a) The secretary of state shall cancel

(1)  all registrations in force before May 2, 1962, which are more than 10 years old and which have not been reregistered under Section 16.14(c) of this code;

(2)  a registration on receipt of a voluntary request for cancellation from the registrant under this chapter or under a prior act as identified by the records of the secretary of state;

(3)  registrations granted under this chapter and not renewed under Section 16.14(a) of this code;

(4)  a registration concerning which a district or appellate court has rendered a final judgment, which has become unappealable, cancelling the registration or finding that

(A)  the registered mark has been abandoned;

(B)  the registrant under this chapter or under a prior act is not the owner of the mark;

(C)  the registration was granted contrary to the provisions of this chapter;

(D)  the registration was obtained fraudulently; or

(E)  the registered mark has become incapable of serving as a mark.

(b)  The clerk of the court whose final judgment cancels a registration or makes any of the findings specified in Subsection (a)(4) of this section shall, when the judgment becomes unappealable, transmit a certified copy of it to the secretary of state.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.17.  Assignment Of Mark And Registration.

(a) A mark and its registration under this chapter are assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill connected with the use of, and symbolized by, the mark.

(b)  An assignment shall be made by duly executed written instrument.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.18.  Recordation Of Assignment And Its Effect.

(a) An assignment made under Section 16.17 of this code may be recorded with the secretary of state by

(1)  filing with him

(A)  the original assignment; and

(B)  a duplicate original or legible photocopy on durable paper of the assignment; and

(2)  paying him a fee of $10.

(b)  If an assignment has been properly filed for record under Subsection (a) of this section, the secretary of state shall

(1)  issue in the assignee's name a new certificate of registration for the remainder of the term of the mark's registration, reregistration, or last renewal;

(2)  endorse on the original and duplicate original assignment or photocopy the

(A)  words "Filed for record in the office of the Secretary of State, State of Texas"; and

(B)  date on which the assignment was filed for record;

(3)  file the duplicate original or photocopy of the assignment in his office; and

(4)  return the endorsed original assignment to the assignee or his representative.

(c)  The assignment of a mark registered under this chapter is void against a purchaser who purchases the mark for value after the assignment is made and without notice of it unless the assignment is recorded by the secretary of state

(1)  within three months after the date of the assignment; or

(2)  before the mark is purchased.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1983, 68th Leg., p. 314, ch. 69, Sec. 8, eff. Sept. 1, 1983.



Section  16.19.  Recordation Of Other Instruments.

(a) An instrument that is related to the ownership of a mark registered under this subchapter, including articles of merger or conversion or a document effecting a name change, may be recorded with the secretary of state by:

(1)  filing a certified copy of the instrument; and

(2)  paying a filing fee in the amount established for the filing of an assignment under Section 16.18.

(b)  This section does not apply to the recording of a mortgage or a security interest or other instrument that is recordable under the Uniform Commercial Code.

(c)  A license agreement related to a mark registered under this chapter may not be recorded under this section.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 6, eff. Sept. 1, 1997.



Section  16.20.  Transfer Of Mark; Change Of Registrant's Name; Change Of Address. (a

) If ownership of a registered mark is transferred or a registrant's name is changed during the unexpired term of a registration, a new certificate of registration may be issued for the remainder of the unexpired term of the mark's registration in the name of the transferee or in the new name of the registrant upon the filing of an instrument under Section 16.19.

(b)  The secretary of state may amend the trademark records of an effective registration to reflect a change of registrant address upon receipt of a statement signed by the registrant or the registrant's agent. The statement must set forth the name of the registrant of record, a description of the registered mark, the registration number issued by the secretary of state, and the registrant's new address.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 6, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 168, Sec. 2, eff. Sept. 1, 2003.



Section  16.21.  Powers Of Secretary Of State.

(a) The secretary of state may adopt rules relating to the filing of documents under this subchapter.

(b)  The secretary of state may prescribe forms for use in filing documents under this subchapter.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 6, eff. Sept. 1, 1997.



Section  16.22.  Electronic Filings And Reproductions.

(a) An application for renewal of trademark registration, an assignment under Section 16.17, or a transfer of ownership or change of registrant name under Section 16.19 may be submitted in an electronic format that is approved by the secretary of state. An instrument that is filed in accordance with this subsection is deemed to have complied with:

(1)  the filing requirements of the section pursuant to which it is filed; and

(2)  any requirement that the document be submitted as an originally signed instrument.

(b)  All electronic acknowledgments and certificates required to be issued by the secretary of state for the instruments filed pursuant to Subsection (a) shall be considered issued or provided by the secretary of state on the initial transmission by the secretary of state of the acknowledgment or certificate required to be filed.

(c)  Any certificate issued by the secretary of state concerning any instrument filed under this subchapter need not be on paper or reduced to printed form.

(d)  If permitted by the rules adopted by the secretary of state, an original instrument required or authorized to be filed with the secretary of state under this subchapter may be a photographic, photostatic, facsimile, or similar reproduction of a signed instrument.

(e)  All civil and criminal penalties applicable to the filing of documents under this chapter apply to all documents filed pursuant to this section.

Added by Acts 2003, 78th Leg., ch. 168, Sec. 3, eff. Sept. 1, 2003.



Subchapter C. Court Action

Section  16.24.  Review Of Secretary Of State's Decisions.

(a) If the secretary of state takes final action refusing to register a mark under Section 16.109 or to renew the registration of a mark under Section 16.14, the applicant or registrant may file suit for review of the secretary of state's decision in one of the Travis County district courts.

(b)  A suit filed under Subsection (a) of this section is tried de novo, as an appeal from a justice court to a county court, and

(1)  every decision or action concerning an issue in the suit made or taken by the secretary of state before the suit was filed is void;

(2)  the district court shall determine the issues in the suit as if no decision had been made or action taken by the secretary of state; and

(3)  the district court may not apply in any form the substantial evidence rule in reviewing a decision or action of the secretary of state.

(c)  The legislature declares that

(1)  this section is not severable from the other sections of this chapter;

(2)  it would not have enacted this chapter without this section; and

(3)  this chapter is void if a court in a final judgment which becomes unappealable invalidates this section in whole or part.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967. Amended by Acts 1999, 76th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1999.



Section  16.25.  Suit To Cancel Registration.

(a) A person who believes that he is or will be damaged by a registration under this chapter may sue to cancel the registration in a district court having venue.

(b)  The clerk of a court in which suit is filed under Subsection (a) of this section shall transmit notice of the suit to the secretary of state, who shall place the notice in the registration file with proper notations and endorsements.

(c)  When the registrant's agent for service of process is the secretary of state, the secretary of state shall forward notice of the suit by registered mail to the registrant at his last address of record.

(d)  If the court finds that the losing party in a suit filed under Subsection (a) of this section should have known his position was without merit, the court may award the successful party his reasonable attorneys' fees and charge them as part of the costs against the losing party.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.26.  Infringement Of Registered Mark.

(a) Subject to Section 16.27 of this code, a person commits an infringement if, without the registrant's consent, he

(1)  uses anywhere in this state a reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter in connection with selling, offering for sale, or advertising goods or services when the use is likely to deceive or cause confusion or mistake as to the source or origin of the goods or services; or

(2)  reproduces, counterfeits, copies, or colorably imitates a mark registered under this chapter and applies the reproduction, counterfeit, copy, or colorable imitation to a label, sign, print, package, wrapper, receptacle, or advertisement intended to be used in selling, leasing, distributing, or rendering goods or services in this state when the use is likely to deceive or cause confusion or mistake as to the source or origin of the goods or services.

(b)  A registrant may sue for damages and to enjoin an infringement proscribed by Subsection (a) of this section in a district court having venue.

(c)  If the district court determines that there has been an infringement, it shall enjoin the act of infringement and may

(1)  require the infringer to pay the registrant all damages resulting from the acts of infringement and occurring from and after the date two years before the day the suit was filed; and

(2)  order that the infringing reproductions, counterfeits, copies, or colorable imitations in the possession or under the control of the infringer be

(A)  delivered to an officer of the court;

(B)  delivered to the registrant; or

(C)  destroyed.

(d)  A registrant is entitled to recover damages under Subsection (c)(1) of this section only for an infringement that occurred during the period of time the infringer had actual knowledge of the registrant's mark.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.27.  Exceptions To Liability For Infringement.

(a) No registration under this chapter adversely affects common law rights acquired prior to registration under this chapter. However, during any period when the registration of a mark under this chapter is in force and the registrant has not abandoned the mark, no common law rights as against the registrant of the mark may be acquired.

(b)  The owner or operator of a radio or television station, or the owner or publisher of a newspaper, magazine, directory, or other publication, is not liable in that business under Section 16.26 of this code for the use of a registered mark furnished by one of his advertisers or customers.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.28.  Procuring Application Or Registration By Fraud.

(a) No person may procure for himself or another the filing of an application or the registration of a mark under this chapter by knowingly making a false or fraudulent representation or declaration, oral or written, or by any other fraudulent means.

(b)  A person injured by the false or fraudulent procurement of an application or registration may sue the person who violated Subsection (a) of this section in a district court having venue and

(1)  recover from him damages resulting from use of the fraudulently registered mark, plus costs of suit, including attorneys' fees; and

(2)  have the registration cancelled.

Acts 1967, 60th Leg., p. 2343, ch. 785, Sec. 1, eff. Sept. 1, 1967.



Section  16.29.  Injury To Business Reputation Or Trade Name Or Mark. A P

erson may bring an action to enjoin an act likely to injure a business reputation or to dilute the distinctive quality of a mark registered under this chapter or Title 15, U.S.C., or a mark or trade name valid at common law, regardless of whether there is competition between the parties or confusion as to the source of goods or services. An injunction sought under this section shall be obtained pursuant to Rule 680 et seq. of the Texas Rules of Civil Procedure.

Added by Acts 1989, 71st Leg., ch. 932, Sec. 1, eff. June 14, 1989.



Section  16.30.  Olympic Symbols.

(a) Without the permission of the United States Olympic Committee, a person may not, for the purpose of trade, to induce the sale of goods or services, or to promote a theatrical exhibition, athletic performance, or competition, use:

(1)  the symbol of the International Olympic Committee, consisting of five interlocking rings;

(2)  the emblem of the United States Olympic Committee, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with five interlocking rings displayed on the chief;

(3)  a trademark, trade name, sign, symbol, or insignia falsely representing association with or authorization by the International Olympic Committee or the United States Olympic Committee; or

(4)  the words "Olympic," "Olympiad," or "Citius Altius Fortius" or a combination or simulation of those words that tends to cause confusion or mistake, to deceive, or to suggest falsely a connection with the United States Olympic Committee or an Olympic activity.

(b)  On violation of Subsection (a), the United States Olympic Committee is entitled to the remedies available to a registrant on infringement of a mark registered under this chapter.

Added by Acts 1995, 74th Leg., ch. 113, Sec. 1, eff. Sept. 1, 1995.



Section  16.31.  Criminal Penalty.

(a) A person commits an offense if the person knowingly or intentionally signs and presents or causes to be presented for filing a document that may be or is required to be filed under this chapter and that:

(1)  indicates that the person signing the document has the authority to act on behalf of an applicant or registrant when the person is not authorized to act on behalf of the applicant or registrant;

(2)  contains a material false statement; or

(3)  is forged.

(b)  An offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony.

Added by Acts 1997, 75th Leg., ch. 248, Sec. 7, eff. Sept. 1, 1997.


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