407.309. Advertising restrictions--definitions--attorney general to enforce, when--civil penalty authorized.
Advertising restrictions--definitions--attorney general to enforce,when--civil penalty authorized.
407.309. 1. As used in this section, the following terms mean:
(1) "Performing group", a vocal or instrumental group seeking to usethe name of another group that has previously released a commercial soundrecording under that name;
(2) "Recording group", a vocal or instrumental group at least one ofwhose members has previously released a commercial sound recording underthat group's name and in which the member or members have a legal right byvirtue of use or operation under the group name without having abandonedthe name or affiliation with the group;
(3) "Sound recording", a work that results from the fixation on amaterial object of a series of musical, spoken, or other sounds regardlessof the nature of the material object, such as a disk, tape, or otherphono-record, in which the sounds are embodied.
2. It shall be unlawful for any person to advertise or conduct a livemusical performance or production in this state through the use of a false,deceptive, or misleading affiliation, connection, or association betweenthe performing group and the recording group. This section shall not applyif:
(1) The performing group is the authorized registrant and owner of afederal service mark for that group registered in the United States Patentand Trademark Office;
(2) At least one member of the performing group was a member of therecording group and has a legal right by virtue of use or operation underthe group name without having abandoned the name or affiliation with thegroup;
(3) The live musical performance or production is identified in alladvertising and promotion as a salute or tribute;
(4) The advertising does not relate to a live musical performance orproduction taking place in this state; or
(5) The performance or production is expressly authorized by therecording group.
3. Whenever the attorney general has reason to believe that anyperson is advertising or conducting or is about to advertise or conduct alive musical performance or production in violation of this section andthat proceedings would be in the public interest, the attorney general maybring an action against the person to restrain by temporary or permanentinjunction that practice.
4. Whenever any court issues a permanent injunction to restrain andprevent violations of this section as authorized in subsection 3 of thissection, the court may in its discretion direct that the defendant restoreto any person in interest any moneys or property, real or personal, whichmay have been acquired by means of any violation of this section, underterms and conditions to be established by the court.
5. Notwithstanding the provisions of section 407.100 to the contrary,any person who violates this section shall be assessed a civil penalty ofnot less than five thousand dollars nor more than fifteen thousand dollarsper violation, which civil penalty shall be in addition to any other reliefwhich may be granted under subsection 4 of this section. Each performanceor production declared unlawful by this section shall constitute a separateviolation.
(L. 2007 H.B. 780)