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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : TRADE AND COMMERCE
Chapter : Chapter 417 Trademarks, Names and Private Emblems
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As used in sections 417.005 to 417.066, unless the text clearly
indicates otherwise, the following terms mean:
(1) "Applicant", the person filing an application for registration of a
trademark under sections 417.005 to 417.066, his legal representatives,
successors or assigns;
(2) "Mark", any trademark or service mark entitled to registration under
sections 417.005 to 417.066 whether registered or not;
(3) "Person", any individual, firm, partnership, corporation,
association, union or other organization;
(4) "Registrant", the person to whom the registration of a trademark
under sections 417.005 to 417.066 is issued, his legal representatives,
successors or assigns;
(5) "Service mark", a mark used in the sale or advertising of services to
identify the services of one person and distinguish them from the
services of others;
(6) "Trademark", any word, name, symbol, or device or any combination
thereof adopted and used by a person to identify goods made or sold by
him and to distinguish them from goods made or sold by others;
(7) "Trade name", a word, name, symbol, device or any combination thereof
used by a person to identify his business, vocation or occupation and
distinguish it from the business, vocation or occupation of others;
(8) For the purposes of sections 417.005 to 417.066, a trademark shall be
deemed to be "used" in this state (a) on goods when it is placed in any
manner on the goods or their containers or on displays or documents
associated with the goods or their sale or on the tags or labels affixed
thereto and such goods are sold or otherwise distributed in the state,
and (b) on services when it is used or displayed in the sale or
advertising of services and the services are rendered in this state; and
(9) For the purposes of sections 417.005 to 417.066, a mark shall be
deemed to be "abandoned" when its use has been discontinued with intent
not to resume such use. "Intent not to resume" may be inferred from
circumstances. (L. 1973 H.B. 281 § 1, A.L. 1995 S.B. 80 & 88)
A mark by which the goods or services of any applicant for
registration may be distinguished from the goods or services of others
shall not be registered if it:
(1) Consists of or comprises immoral, deceptive or scandalous matter; or
(2) Consists of or comprises matter which may disparage or falsely
suggest a connection with persons, living or dead, institutions, beliefs,
or national symbols, or bring them into contempt, or disrepute; or
(3) Consists of or comprises the flag or coat of arms or other insignia
of the United States, or of any state or municipality, or of any foreign
nation, or any simulation thereof; or
(4) Consists of or comprises the name, signature or portrait of any
living individual, except with the written consent; or
(5) Consists of a mark which, (a) when applied to the goods or services
of the applicant, is merely descriptive or deceptively misdescriptive of
them, or (b) when applied to the goods or services of the applicant, is
primarily geographically descriptive or deceptively misdescriptive of
them, or (c) is primarily merely a surname; provided, however, that
nothing in this section shall prevent the registration of a mark used in
this state by the applicant which has become distinctive of the
applicant's goods or services. The secretary of state may accept as
evidence that the mark has become distinctive, as applied to the
applicant's goods or services, proof of continuous use thereof as a mark
by the applicant in the state or elsewhere for the five years next
preceding the date of the filing of the application for registration; or
(6) Consists of or comprises a mark which so resembles a mark registered
in this state, or a mark or trade name previously used in this state by
another and not abandoned, as to be likely, when applied to the goods or
services of the applicant, to cause confusion or mistake or to deceive.
(L. 1973 H.B. 281 § 2)
1. Subject to the limitations set forth in sections 417.005 to
417.066, any person who adopts and uses a mark in this state may file in
the office of the secretary of state, on a form to be authorized or
furnished by the secretary of state, an application for registration of
that mark setting forth, but not limited to, the following information:
(1) The name and business address of the person applying for such
registration; and, if a corporation, the state of incorporation;
(2) The goods or services in connection with which the mark is used and
the mode or manner in which the mark is used in connection with such
goods or services and the class in which such goods or services fall;
(3) The date when the mark was first used anywhere and the date when it
was first used in this state by the applicant or his predecessor in
business; and
(4) A statement that the applicant is the owner of the mark and that no
other person has the right to use such mark in this state either in the
identical form thereof or in such near resemblance thereto as might be
calculated to deceive or to be mistaken therefor.
2. The application shall be signed and verified by the applicant or by a
member of the firm or an officer of the corporation or association
applying.
3. The application shall be accompanied by a specimen or facsimile of
such mark in triplicate.
4. The application for registration shall be accompanied by a fee of
fifty dollars, payable to the director of revenue.
5. The secretary of state may also require a statement as to whether an
application to register the mark, or portions or a composite thereof, has
been filed by the applicant or a predecessor in interest in the United
States Patent and Trademark Office; and, if so, the applicant shall
provide full particulars with respect thereof including the filing date
and serial number of each application, the status thereof and, if any
application was finally refused registration or has otherwise not
resulted in a registration, the reasons therefor.
6. The secretary of state may also require that a drawing of the mark,
complying with such requirements as the secretary of state may specify,
accompany the application.
7. Upon the filing of an application for registration and payment of the
application fee, the secretary of state may cause the application to be
examined for conformity with sections 417.005 to 417.066.
8. The applicant shall provide any additional pertinent information
requested by the secretary of state including a description of a design
mark and may make, or authorize the secretary of state to make, such
amendments to the application as may be reasonably requested by the
secretary of state or deemed by the applicant to be advisable to respond
to any rejection or objection.
9. The secretary of state may require the applicant to disclaim an
unregisterable component of a mark otherwise registerable, and an
applicant may voluntarily disclaim a component of a mark sought to be
registered. No disclaimer shall prejudice or affect the applicant's or
registrant's rights then existing or thereafter arising in the disclaimed
matter, or the applicant's or registrant's rights of registration on
another application if the disclaimed matter be or shall have become
distinctive of the applicant's or registrant's goods or services.
10. Amendments may be made by the secretary of state upon the application
submitted by the applicant with the applicant's agreement; or a fresh
application may be required to be submitted.
11. If the applicant is found not to be entitled to registration, the
secretary of state shall advise the applicant thereof and of the reasons
therefor. The applicant shall have a reasonable period of time specified
by the secretary of state in which to reply or to amend the application,
in which event the application shall then be reexamined. This procedure
may be repeated until:
(1) The secretary of state finally refuses registration of the mark; or
(2) The applicant fails to reply or amend within the specified period,
whereupon the application shall be deemed to have been abandoned.
12. If the secretary of state finally refuses registration of the mark,
the applicant may seek, in the circuit court of Cole County, an
extraordinary writ to compel such registration. Such injunction may be
granted, but without costs to the secretary of state, on proof that all
the statements in the application are true and that the mark is otherwise
entitled to registration.
13. In the instance of applications concurrently being processed by the
secretary of state seeking registration of the same or confusingly
similar marks for the same or related goods or services, the secretary of
state shall grant priority to the applications in order of filing. If a
prior-filed application is granted a registration, the other application
or applications shall then be rejected. Any rejected applicant may bring
an action for cancellation of the registration upon grounds of prior or
superior rights to the mark, in accordance with the provisions of section
417.041. (L. 1973 H.B. 281 § 3, A.L. 1995 S.B. 80 & 88)
The secretary of state may collect an additional fee of five
dollars on each and every fee required in this chapter. All fees
collected as provided in this section shall be deposited in the state
treasury and credited to the secretary of state's technology trust fund
account. The provisions of this section shall expire on December 31,
2009. (L. 1994 S.B. 635, A.L. 2001 H.B. 453 merged with S.B. 288)
Effective 7-01-01 (S.B. 288) 8-28-01 (H.B. 453)
Expires 12-31-09
1. Upon compliance by the applicant with the requirements of
sections 417.005 to 417.066, the secretary of state shall cause a
certificate of registration to be issued and delivered to the applicant.
The certificate of registration shall be issued under the signature of
the secretary of state and the seal of the state, and it shall show the
name and business address and, if a corporation, the state of
incorporation, of the person claiming ownership of the mark, the date
claimed for the first use of the mark anywhere and the date claimed for
the first use of the mark in this state, the class of goods or services
and a description of the goods or services on which the mark is used, a
reproduction of the mark, the registration date and the term of the
registration.
2. Any certificate of registration issued by the secretary of state under
the provisions hereof or a copy thereof duly certified by the secretary
of state shall be admissible in evidence as competent and sufficient
proof of the registration of such mark in any action or judicial
proceedings in any court of this state.
3. A registrant shall receive a duplicate of a certificate upon
application for such duplicate on a form authorized or furnished by the
secretary of state and the payment of a fee of ten dollars.
4. A registrant shall receive an abstract of a mark upon application for
such abstract on a form authorized or furnished by the secretary of state
and the payment of a fee of five dollars. (L. 1973 H.B. 281 § 4, A.L.
1995 S.B. 80 & 88)
1. Registration of a mark hereunder shall be effective for a
term of ten years from the date of registration and, upon application
filed within six months prior to the expiration of such term, on a form
to be authorized or furnished by the secretary of state, the registration
may be renewed for a like term. A renewal fee of ten dollars, payable to
the director of revenue, shall accompany the application for renewal of
the registration. A mark registration may be renewed for successive
periods of ten years in like manner.
2. The secretary of state shall notify registrants of marks hereunder of
the necessity of renewal within the year next preceding the expiration of
the ten years from the date of registration, by writing to the last known
address of the registrants.
3. Any registration in force on September 28, 1973, shall expire ten
years from the date of the registration or of the last renewal thereof or
September 28, 1974, whichever is later, and may be renewed by filing an
application with the secretary of state on a form authorized or furnished
by him and paying the aforementioned renewal fee therefor within six
months prior to the expiration of the registration.
4. All applications for renewals under sections 417.005 to 417.066
whether of registrations made under sections 417.005 to 417.066 or of
registrations effected under any prior act, shall include a statement
that the mark is still in use in this state.
5. The secretary of state shall within six months after September 28,
1973, notify all registrants of marks under previous acts of the date of
expiration of such registrations unless renewed in accordance with the
provisions of sections 417.005 to 417.066, by writing to the last known
address of the registrants. (L. 1973 H.B. 281 § 5, A.L. 1995 S.B. 80 & 88)
1. Any mark and its registration hereunder shall be assignable
with the goodwill of the business in which the mark is used, or with that
part of the goodwill of the business connected with the use of and
symbolized by the mark. Assignment shall be in writing upon transmittal
forms authorized or furnished by the secretary of state and may be
recorded with the secretary of state upon the payment of a fee of fifty
dollars payable to the director of revenue who, upon recording of the
assignment, shall issue in the name of the assignee a new certificate for
the remainder of the term of the registration or of the last renewal
thereof. An assignment of any registration under sections 417.005 to
417.066 shall be void as against any subsequent purchaser for valuable
consideration without notice, unless it is recorded with the secretary of
state within three months after the date thereof or prior to such
subsequent purchase.
2. Any registrant or applicant effecting a change of the name of the
person to whom the mark was issued or for whom an application was filed
may record, upon a transmittal form authorized or furnished by the
secretary of state, a certificate of change of name of the registrant or
applicant with the secretary of state upon the payment of the recording
fee. The secretary of state may issue in the name of the assignee a
certificate of registration of an assigned application. The secretary of
state may issue in the name of the assignee, a new certificate or
registration for the remainder of the term of the registration or last
renewal thereof.
3. Acknowledgment shall be prima facie evidence of the execution of an
assignment or other instrument and, when recorded by the secretary of
state, the record shall be prima facie evidence of execution. (L. 1973
H.B. 281 § 6, A.L. 1995 S.B. 80 & 88)
The secretary of state shall keep for public examination a
record of all marks registered or renewed under sections 417.005 to
417.066. (L. 1973 H.B. 281 § 7)
The secretary of state shall cancel from the register:
(1) After September 28, 1974, all registrations under prior acts which
are more than ten years old and not renewed in accordance with sections
417.005 to 417.066;
(2) Any registration concerning which the secretary of state shall
receive a voluntary request for cancellation thereof from the registrant
or the assignee of record;
(3) All registrations granted under sections 417.005 to 417.066 and not
renewed in accordance with the provisions hereof;
(4) Any registration concerning which a court of competent jurisdiction
shall find:
(a) That the registered mark has been abandoned; or
(b) That the registrant is not the owner of the mark; or
(c) That the registration was granted improperly; or
(d) That the registration was obtained fraudulently; or
(e) That the mark is or has become the generic name for the goods or
services, or a portion thereof, for which it has been registered; or
(f) That the registered mark is so similar, as to be likely to cause
confusion or mistake or to deceive, to a mark registered by another
person in the United States Patent and Trademark Office, prior to the
date of the filing of the application for registration by the registrant
hereunder, and not abandoned; provided, however, that should the
registrant prove that he is the owner of a concurrent registration of his
mark in the United States Patent and Trademark* Office covering an area
including this state, the registration hereunder shall not be canceled;
(5) When a court of competent jurisdiction shall order cancellation of a
registration on any ground. (L. 1973 H.B. 281 § 8, A.L. 1995 S.B. 80 & 88)
*Words "and Trademark" do not appear in original rolls.
1. The general classes of goods and services as provided in this
section are established for convenience of administration of sections
417.005 to 417.066, but not to limit or extend the applicant's or
registrant's rights, and a single application for registration of a mark
may include any or all goods upon which, or services with which, the mark
is actually being used comprised in a single class, but in no event shall
a single application include goods or services upon which the mark is
being used which fall within different classes of goods or services.
2. The classes of goods and services are as follows:
GOODS
(1) Chemicals;
(2) Paints;
(3) Cosmetics and cleaning preparations;
(4) Lubricants and fuels;
(5) Pharmaceuticals;
(6) Metal goods;
(7) Machinery;
(8) Hand tools;
(9) Electrical and scientific apparatus;
(10) Medical apparatus;
(11) Environmental control apparatus;
(12) Vehicles;
(13) Firearms;
(14) Jewelry;
(15) Musical instruments;
(16) Paper goods and printed matter;
(17) Rubber goods;
(18) Leather goods;
(19) Nonmetallic building materials;
(20) Furniture and articles not otherwise classified;
(21) Housewares and glass;
(22) Cordage and fibers;
(23) Yarns and threads;
(24) Fabrics;
(25) Clothing;
(26) Fancy goods;
(27) Floor coverings;
(28) Toys and sporting goods;
(29) Meats and processed foods;
(30) Staple foods;
(31) Natural agricultural products;
(32) Light beverages;
(33) Wines and spirits; and
(34) Smokers' articles.
SERVICES
(35) Advertising and business;
(36) Insurance and financial;
(37) Construction and repair;
(38) Communications;
(39) Transportation and storage;
(40) Material treatment;
(41) Education and entertainment; and
(42) Miscellaneous. (L. 1973 H.B. 281 § 9, A.L. 1995 S.B. 80 & 88)
Any person who shall for himself, or on behalf of any other
person, procure the filing or registration of any mark in the office of
the secretary of state under the provisions hereof, by knowingly making
any false or fraudulent representation or declaration, verbally or in
writing, or by any other fraudulent means, shall be liable to pay all
damages sustained in consequence of such filing or registration, to be
recovered by or on behalf of the party injured thereby in any court of
competent jurisdiction. (L. 1973 H.B. 281 § 10)
Subject to the provisions of section 417.066, any person who
shall:
(1) Use, without the consent of the registrant, any reproduction,
counterfeit, copy, or colorable imitation of a mark registered under
sections 417.005 to 417.066 in connection with the sale, offering for
sale, or advertising of any goods or services on or in connection with
which such use is likely to cause confusion or mistake or to deceive as
to the source of origin of such goods or services; or
(2) Reproduce, counterfeit, copy or colorably imitate any such mark and
apply such reproduction, counterfeit, copy or colorable imitation to
labels, signs, prints, packages, wrappers, receptacles, or advertisements
intended to be used upon or in conjunction with the sale or other
distribution in this state of such goods or services; shall be liable to
a civil action by the owner of such registered mark for any or all of the
remedies provided in section 417.061, except that under subdivision (2)
hereof the registrant shall not be entitled to recover profits or damages
unless the acts have been committed with knowledge that such mark is
intended to be used to cause confusion or mistake or to deceive. (L. 1973
H.B. 281 § 11)
1. Likelihood of injury to business reputation or of dilution of
the distinctive quality of a mark registered under sections 417.005 to
417.066, or a mark valid at common law, or a trade name valid at common
law, shall be a ground for injunctive relief notwithstanding the absence
of competition between the parties or the absence of confusion as to the
source of goods or services.
2. Any owner of a mark registered under sections 417.005 to 417.066 may
proceed by suit to enjoin the manufacturer, use, display or sale of any
counterfeits or imitations thereof and any court of competent
jurisdiction may grant injunctions to restrain such manufacture, use,
display or sale as may be by the said court deemed just and reasonable,
and may require the defendants to pay to such owner all profits derived
from or damages suffered by reason of such wrongful manufacture, use,
display or sale; and such court may also order that any such counterfeits
or imitations in the possession or under the control of any defendant in
such case be delivered to an officer of the court, or to the complainant,
to be destroyed. The court, in its discretion, may enter judgment in such
cases where the court finds that a party committed such wrongful acts
with knowledge or in bad faith or otherwise as according to the
circumstances of the case.
3. The enumeration of any right or remedy herein shall not affect a
registrant's right to prosecute under any penal law of this state. (L.
1973 H.B. 281 §§ 12, 13, A.L. 1995 S.B. 80 & 88)
(1998) Federal trademark registration is a defense to state anti-dilution
statute, but does not preempt the field. Viacom Inc. v. Ingram
Enterprises, Inc., 141 F.3d 886 (8th Cir.).
1. Nothing herein shall adversely affect the rights or the
enforcement of rights in marks acquired in good faith at any time at
common law.
2. The provisions of sections 417.005 to 417.066 shall not affect any
suit, proceeding or appeal pending on September 28, 1973.
3. Actions to require cancellation of a mark registered pursuant to
sections 417.005 to 417.066 shall be brought in a court of competent
jurisdiction. Actions seeking an extraordinary writ to compel
registration of a mark pursuant to sections 417.005 to 417.066 shall be
brought in the circuit court of Cole County. In an action seeking an
extraordinary writ, the proceeding shall be based solely upon the record
before the secretary of state. In an action for cancellation, the
secretary of state shall not be made a party to the proceeding but shall
be notified of the filing of the complaint by the clerk of the court and
shall be given the right to intervene in the action.
4. In any action brought against a nonresident registrant, service may be
effected upon the agent for service of the registrant in accordance with
the procedures established for service upon nonresident corporations and
business entities under section 351.594, RSMo. (L. 1973 H.B. 281 § 14,
A.L. 1995 S.B. 80 & 88)
1. No person shall manufacture any flour, grits, hominy or meal
until he shall have filed with the recorder of deeds of the county in
which his business is conducted, and acknowledged the same as deeds to
lands are required to be acknowledged, a facsimile of each of the brands
he intends to use, which shall contain the colors to be used in applying
the same, the weight and quality of the flour, grits, hominy or meal, and
the name of the manufacturer thereof, or of some person in his employ,
and the state or town or place and the mill where manufactured.
2. Should any manufacturer claim any of his said brands, or any part of
the same, as a trademark, the said recorder shall record his claim, and
thereafter it shall not be lawful for any other person to use such brand;
provided, always, that this section shall not be construed to interfere
with the right to any brand or trademark copyrighted or patented in
pursuance of an act of Congress. (RSMo 1939 § 9919)
Prior revisions: 1929 § 13079; 1919 § 5725; 1909 § 6619
It shall be the duty of each recorder of deeds within the state
to keep a book in his office, in which to record the flour brands
provided for in section 417.100, and a certified copy of any such record,
by the recorder, shall be evidence in all courts of the making and filing
and contents thereof. (RSMo 1939 § 9921)
Prior revisions: 1929 § 13081; 1919 § 5727; 1909 § 6621
Any person doing any of the acts in sections 417.100 and 417.130
prohibited, or omitting to do any of the acts thereby commanded, shall be
guilty of a misdemeanor, and for each and every offense shall be punished
by a fine of not less than twenty nor more than two hundred dollars,
one-half of which shall be paid to the person who shall be named as
prosecuting witness. (RSMo 1939 § 9922, A. 1949 H.B. 2111)
Prior revisions: 1929 § 13082; 1919 § 5728; 1909 § 6622
1. No person, society, association or corporation shall assume,
adopt or use the name of a military, ex-military, patriotic, benevolent,
humane, fraternal or charitable organization incorporated or organized
under the laws of this or any other state or of the United States, or a
name so nearly resembling the name of such incorporated organization as
to be a colorable imitation thereof, or calculated to deceive any person
with respect to such corporation.
2. In all cases where two or more such societies, associations,
corporations or organizations claim the right to the same name or names
substantially similar as above provided, the organization which was first
organized and used the name and first became incorporated or organized
under the laws of the United States or of any state in the union, shall
be entitled in this state to the prior and exclusive use of such name,
and the rights of such societies, associations, corporations or
organizations and of their individual members shall be fixed and
determined accordingly. (RSMo 1939 § 15462)
Prior revisions: 1929 § 14338; 1919 § 13272
No person shall wear or exhibit the recognized or established
badge, button, emblem, decoration, insignia or charm, or any emblem,
insignia or charm representing a component part of the recognized or
established badge, button, emblem, decoration, insignia or charm, or
shall assume or use the name of any military, ex-military, patriotic,
benevolent, humane, fraternal or charitable corporation incorporated or
organized under the law of this or any other state or of the United
States, or shall assume or claim to be a member thereof, or of a
military, ex-military, patriotic, benevolent, humane, fraternal or
charitable corporation the name of which shall so nearly resemble the
name of any other corporation or organization existing prior to the
organization of the corporation, association or organization of which
such person may claim to be a member, the name whereof may be calculated
to deceive people with respect to any such prior corporation or
organization, unless he shall be authorized under the laws, statutes,
rules, regulations and bylaws of such former corporation or organization
to wear such recognized or established badge, button, emblem, decoration,
insignia or charm, or such component part or parts of such recognized and
established badge, button, emblem, decoration, insignia or charm, to use
and assume such name as a member thereof. (RSMo 1939 § 15463)
Prior revisions: 1929 § 14339; 1919 § 13273)
1. Every person, society, association or corporation, assuming,
adopting or using the name of a military, ex-military, patriotic,
benevolent, humane, fraternal or charitable organization incorporated or
organized under the laws of this or any other state or of the United
States, and members whereof may wear or exhibit the recognized or
established badge, button, emblem, decoration, insignia or charm thereof,
or any emblem, insignia or charm representing a component part of the
recognized or established badge, button, emblem, decoration, insignia or
charm, may file in the office of the secretary of state, on a form to be
furnished by the secretary of state, an application for registration of
the name of such military, ex-military, patriotic, benevolent, humane,
fraternal or charitable organization, together with a description of such
recognized and established badge, button, emblem, decoration, insignia or
charm, and the component parts of such badge, button, emblem, decoration,
insignia or charm. The application shall be accompanied by the actual,
recognized and established badge, button, emblem, decoration, insignia or
charm and the required fee of fifty dollars.
2. Upon compliance by the applicant with the requirements of sections
417.150 to 417.180, the secretary of state shall deliver to such person,
society, association or corporation so filing the same a duly attested
certificate of registration of the same.
3. Such certificate shall, in all suits and prosecutions under sections
417.150 to 417.180, be sufficient proof of the adoption of such badge,
button, emblem, decoration, insignia or charm, and the component parts
thereof, and of the right of such person, society, association or
corporation to adopt the same.
4. Applications for assignments, renewals, duplicate certificates and
abstracts of emblems shall be accompanied by a fee in the same amount as
required for such application with respect to a trademark as established
under sections 417.005 to 417.066. (RSMo 1939 § 15464, A.L. 1947 V. I p.
560, A.L. 1995 S.B. 80 & 88)
Prior revisions: 1929 § 14340; 1919 § 13274
1. Registration of an emblem hereunder shall be effective for a
term of five years from the date of registration and, upon application
filed within six months prior to the expiration of such term, on a form
to be furnished by the secretary of state, the registration may be
renewed for a like term. The required renewal fee of twenty-five dollars
shall accompany the application for renewal of the registration. An
emblem registration may be renewed for successive periods of five years
in a like manner.
2. All applications for renewals under sections 417.170 to 417.180,
whether for registrations made under sections 417.170 to 417.180 or for
registrations effected under any prior act, shall include a statement
that the emblem is still in use in this state. (L. 1995 S.B. 80 & 88)
Any person violating any of the provisions of sections 417.150
to 417.180 shall be deemed guilty of a misdemeanor. (RSMo 1939 § 15465)
Prior revisions: 1929 § 14341; 1919 § 13275
Any person who shall display on a motor vehicle the emblem or
insignia of any automobile or motor vehicle club, association or other
organization when he is not a member thereof shall be deemed guilty of a
misdemeanor and upon conviction shall be punished by a fine of not less
than five dollars nor more than five hundred dollars or by imprisonment
in the county jail for not more than two years or by both said fine and
imprisonment. (RSMo 1939 §§ 8401, 8404, A. 1949 H.B. 2111)
Prior revision: 1929 §§ 7783, 7786
That every name under which any person shall do or transact any
business in this state, other than the true name of such person, is
hereby declared to be a fictitious name, and it shall be unlawful for any
person to engage in or transact any business in this state under a
fictitious name without first registering same with the secretary of
state as herein required. (RSMo 1939 § 15466)
Prior revisions: 1929 § 14342; 1919 § 13276
CROSS REFERENCE: Corporate names, reservation of, exclusive use, RSMo
351.110, 351.115
(1957) Failure to register fictitious name is not a defense to action to
enjoin use of confusing similar name in absence of claim of bad faith or
other wrong. Better Business Bureau v. Chappell (A.), 307 S.W.2d 510.
1. Every person, general partnership, corporation, or other
business organization who engages in business in this state under a
fictitious name or under any name other than the true name of such
person, general partnership, corporation, or other business entity shall
within five days after the beginning or engaging in business under such
fictitious name * file in a format as prescribed by the secretary of
state. The execution of the filing required in this section ** shall be
subject to the penalties of making a false declaration pursuant to
section 575.060, RSMo, that the facts stated therein are true and that
all parties concerned are duly authorized to execute such document and
are otherwise required to file such document pursuant to this section.
2. A fictitious name shall not contain any word or phrase that indicates
or implies that it is any governmental agency or that is seriously
misleading.
3. This registration shall state:
(1) The fictitious name;
(2) The physical business address;
(3) The name or names and the residence or business address of every
party owning any interest or part in the business.
4. If the business or owner's or owners' interest ceases to exist or
change within five days of such change, it shall be required to file a
cancellation of the fictitious name in a format prescribed by the
secretary of state and if desired may file a new registration of a new
fictitious name as prescribed in this section.
5. If the interest of any owner of a business conducted under a
fictitious name registered as provided in this section is such that such
owner may claim not to be jointly and severally liable to third parties
with respect to debts and obligations incurred by such business, the
registration relating to such business shall reflect the respective exact
ownership interests of each owner of such business. In the case of any
other business registered as provided in this section, disclosure of the
respective exact ownership interests shall be optional.
6. For purposes of this section, a partnership or other entity formed for
the practice of a licensed profession shall not be deemed to be engaged
in the conduct of business, notwithstanding the transaction by such
entity of business ancillary to the practice of such licensed profession.
7. All fictitious name registrations filed on or after August 28, 2004,
shall be governed by the provisions of this section and shall remain
active on the record of the secretary of state for a period of five
years. Such registered fictitious name filing shall expire at the end of
the five- year period unless a renewal is filed under subsection 9 of
this section.
8. All active fictitious name registrations filed prior to August 28,
2004, shall remain active on the record of the secretary of state for a
period of five years. Such registered fictitious name filing shall expire
at the end of the five-year period unless a renewal is filed under
subsection 9 of this section.
9. A renewal filing shall be filed in a format prescribed by the
secretary of state within six months prior to the expiration date of the
fictitious name registration. Such renewal filing shall state:
(1) The fictitious name and assigned charter number;
(2) The physical business address;
(3) The name or names and the residence or business address of every
party owning any interest or part in the business.
10. A renewal filing continues the effective registration of the
fictitious name for five years after the date the effective registration
would otherwise expire.
11. Fictitious name registrations filed before August 28, 2004, shall be
inactivated by the secretary of state on or after August 28, 2009, unless
a renewal filing is filed under subsection 9 of this section.
12. The secretary of state may remove from its active records the
registration of a fictitious name filing whose registration has been
withdrawn, cancelled, or has expired. (RSMo 1939 § 15467, A.L. 1983 S.B.
367, A.L. 2002 S.B. 895, A.L. 2004 H.B. 1664)
*Word "shall" appears in original rolls.
**Word "and" appears in original rolls.
Foreign business entities which have any owning interest or part
in this business may be required to register with the secretary of state
as prescribed. The foreign business entity may be required to first
obtain a certificate of authority unless otherwise exempt by Missouri
law. (L. 1983 S.B. 367, A.L. 1990 H.B. 1432, A.L. 2004 H.B. 1664)
For the registration or renewal of each fictitious name under
sections 417.200 to 417.230 there shall be paid to the state director of
revenue a fee of two dollars if filed electronically in a format
prescribed by the secretary of state or if filed in a written format
prescribed by the secretary of state. (RSMo 1939 § 15468, A.L. 1947 V. I
p. 560, A.L. 2004 H.B. 1664)
Prior revisions: 1929 § 14344; 1919 § 13278
Any person who shall engage in or transact any business in this
state under a fictitious name, as in sections 417.200 to 417.230 defined,
without registering such name as herein required, shall be deemed guilty
of a misdemeanor. (RSMo 1939 § 15469)
Prior revisions: 1929 § 14345; 1919 § 13279
Any farm owner in this state may, upon the payment of one dollar
to the clerk of the county commission in the county in which said farm
owner may reside, have the name of his farm duly recorded in a register
which the county clerk shall keep for said purpose, and shall be
furnished a certificate, issued under seal, and setting forth the name
and location of the farm and the name of the owner; provided, that when
any name shall have been recorded as the name of any farm, such name
shall not be recorded as the name of any other farm in the same county,
except by prefixing or adding designating words thereto. (RSMo 1939 §
14250)
Prior revisions: 1929 § 12587; 1919 § 12108; 1909 § 732
Persons engaged in manufacturing, bottling or selling liquids in
vessels with their name branded, engraved, blown or otherwise produced
thereon, may file in the office of the recorder of deeds of the city or
county in which the principal place of business of said persons is
situated, and also in the office of the secretary of state, a description
of the name so used by them, and shall publish such description once in
each of four successive weeks in a newspaper published in the city or
county in which said description has been filed. (RSMo 1939 § 15471)
Prior revisions: 1929 § 14347; 1919 § 13281
1. It shall be the duty of the recorder of deeds of and for the
respective cities and counties of this state and of the secretary of
state to keep a separate book of record in which shall be kept, properly
indexed, the description referred to in section 417.250, together with a
proof of the publication of the said description properly verified before
a notary public, and a copy of the said description and proof of
publication, duly certified by the recorder of deeds or the secretary of
state, shall be competent evidence of the said filing and publication.
2. The recorder of deeds and the secretary of state shall be allowed a
fee of three dollars for the filing of the said description and proof of
publication, and a fee of five dollars for furnishing a certified copy
thereof. (RSMo 1939 § 15472)
Prior revisions: 1929 § 14348; 1919 § 13282)
Whoever fills with a liquid any vessel so marked or
distinguished as aforesaid, the description of which has been filed and
published as provided in section 417.250, with intent to sell the said
liquid in the said vessel, or sells, buys, gives, takes, uses or
otherwise disposes of or traffics in any said vessel or any part thereof,
without the written consent of, or unless the same has been purchased
from, the person whose name is in or upon the vessel so filled,
trafficked in, or otherwise used or disposed of, shall, on conviction, be
adjudged guilty of a misdemeanor and punished by a fine of not less than
fifty cents nor more than five dollars for each such vessel, or by
imprisonment for not more than six months, or by both such fine and
imprisonment. (RSMo 1939 § 15473, A.L. 1955 p. 847)
Prior revisions: 1929 § 14349; 1919 § 13283
The use by any person engaged in manufacturing, bottling or
selling liquids, of a vessel marked or distinguished as aforesaid, the
description of which has been filed and published as provided in section
417.250, without the written consent of, or purchase from, the owner
thereof, or the buying, selling, disposing of or trafficking in such
vessels or any part thereof by such person without such written consent
or purchase; or the possession by any junk dealer or dealer in secondhand
articles of any such vessels, or any part thereof, without the written
consent of or purchase from the owner thereof, shall be prima facie
evidence of unlawful use, possession of or traffic in the same. (RSMo
1939 § 15474)
Prior revisions: 1929 § 14350; 1919 § 13284
The taking or accepting by the owner of any deposit for any
purpose upon any vessel registered under sections 417.250 to 417.290
shall not be deemed to constitute a sale of such vessel, either
conditional or otherwise, in any proceeding under said sections. (RSMo
1939 § 15475)
Prior revision: 1929 § 14351
1. Any person engaged in manufacturing, bottling, or selling
milk, buttermilk; cream or ice cream in any kind of receptacle, having
the name of such person or other mark or device printed, stamped,
engraved, etched, blown, painted or otherwise permanently fixed upon the
same, may file in the office of the secretary of state for record a
description of the name, mark or device so used; and cause such
description to be printed once each week for three successive weeks in a
newspaper published in the county in which the principal place of
business of such person is located, or if the principal place of business
of such person is located in another state, then in the county wherein
the principal office or depot of such person within the state of Missouri
is located.
2. It shall be the duty of the secretary of state to issue to the person
so filing for record a description of such name, mark or device in his
office, to duly attest a certificate of the record of the same, for which
he shall receive the fee prescribed by statute for the issuance of
certificates.
3. In all prosecutions under sections 417.300 to 417.360 such certificate
shall be prima facie evidence of the adoption and ownership of such name,
mark or device and of the right of the person named therein to adopt and
use the same. (RSMo 1939 § 14088)
Prior revisions: 1929 § 12449; 1919 § 12020
It shall be unlawful for any person other than the one named in
the certificate issued by the secretary of state as provided in section
417.300, without the written consent of the person named in such
certificate, to fill any receptacle bearing the name, mark, or device
recorded as provided in said section with milk, buttermilk, cream, ice
cream or any other substance, or to buy, sell, give, take, dispose of in
any way, traffic in or destroy any receptacle bearing any such name, mark
or device. (RSMo 1939 § 14089, A.L. 1955 p. 847)
Prior revisions: 1929 § 12450; 1919 12021
Any person having in possession or under control any receptacle
bearing any name, mark or device recorded as provided in section 417.300
and not holding a written transfer or bill of sale therefor from the
person named in the certificate provided for in said section or other
authority in writing from such person shall upon demand deliver such
receptacle to the person named in such certificate or to the authorized
agent of such person, and any person failing or refusing to so deliver
the same when demanded shall be deemed guilty of a misdemeanor. (RSMo
1939 § 14090)
Prior revisions: 1929 § 12451; 1919 § 12022
Whenever any person who has filed for record any such name, mark
or device, or who has acquired from such person in writing the ownership
of such name, mark or device, or the right to the exclusive use thereof,
shall make oath before any judge of the circuit court that he has reason
to believe and does believe that any receptacle bearing such name, mark
or device is being unlawfully used or filled or had in possession by any
other person, such judge shall thereupon issue a search warrant to
discover and obtain such receptacle, and may also cause the person in
whose possession such receptacle shall be found to be brought before him
and shall then inquire into the circumstances of such possession, and if
it shall be found that such person is guilty of violation of sections
417.300 to 417.360 he shall be punished in the manner herein prescribed,
and the possession of the property taken upon such warrant shall be
awarded to the owner thereof, but the remedy provided by this section
shall not be held to be exclusive, and offenders against any provision of
sections 417.300 to 417.360 may be prosecuted as in case of other
misdemeanors. (RSMo 1939 § 14091, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 12452; 1919 § 12023
Effective 1-2-79
Any person offending against any provision of sections 417.300
to 417.360 shall be deemed guilty of a misdemeanor, and upon conviction
thereof by a court of competent jurisdiction shall be punished by a fine
of not less than five dollars nor more than twenty-five dollars, and each
receptacle unlawfully dealt with as herein provided shall be deemed and
held to constitute a separate offense. (RSMo 1939 § 14092, A. 1949 H.B.
2111)
Prior revisions: 1929 § 12453; 1919 § 12024
As used in sections 417.300 to 417.360, the term "receptacle"
shall include not only bottles, siphons, tins, kegs, barrels of all
sizes, boxes, ice cream cabinets, cans and tubs, but all other
receptacles used for holding any of the commodities named in sections
417.300 to 417.360, and the requirement for "written transfer", "bill of
sale", "authority" or "consent" means that it shall be signed by the
person named in the certificate issued by the secretary of state as
herein provided, or by a transferee thereof claiming under a written
assignment from such person, or by an agent whose authority is in
writing, signed by such person or such transferee. (RSMo 1939 § 14093, A.
1949 H.B. 2111)
Prior revisions: 1929 § 12454; 1919 § 12025
The requiring or taking of any deposit for any purpose upon such
receptacle shall not be deemed nor held to be a "sale" either optionally
or otherwise in any proceeding under sections 417.300 to 417.360. (RSMo
1939 § 14094)
Prior revisions: 1929 § 12455; 1919 § 12026
As used in sections 417.400 to 417.436, the following terms mean:
(1) "Contract", an agreement by which an invention developer undertakes
to develop or promote an invention for a customer;
(2) "Customer", any person who is solicited by, inquires about, seeks the
services of, or enters into a contract with, an invention developer for
invention development services;
(3) "Fee", any payment made by the customer to the invention developer
including reimbursement for expenditures made or costs incurred by such
invention developer, but does not include a payment made from a portion
of the income received by a customer by virtue of invention development
services performed by the invention developer;
(4) "Invention", a process, machine, manufacture, composition of matter,
improvement upon the foregoing, or a concept;
(5) "Invention developer", any person, or the agent, employee, or
representative of the person, that develops or promotes, or offers to
develop or promote, an invention of a customer in order that the
customer's invention may be patented, licensed, or sold for manufacture
or manufactured in large quantities, except the term does not include:
(a) Any attorney registered to practice in any court in any state of the
United States and acting within the scope of that person's professional
license, or any person registered before the United States Patent and
Trademark Office acting within the scope of that person's professional
license;
(b) A department or agency of federal, state or local government;
(c) A charitable, scientific, educational, religious, or other
organization, qualified under section 501(c)(3) or described in section
170(b)(1)(A) of the Internal Revenue Code of 1986, as amended;
(d) An entity that does not charge a fee for invention development
services other than any payment made solely from a portion of the income
received by a customer by virtue of invention development services
performed by the person;
(6) "Invention development services", acts required or promised to be
performed, or actually performed, or both, by an invention developer for
a customer. (L. 1995 S.B. 80 & 88)
In the first oral communication with a customer or in the first
written response to an inquiry by a customer, other than an oral
communication or written response the primary purpose of which is to
arrange an appointment with the invention developer for presentation of
his invention development services, the invention developer shall cause
the following disclosures to be made in writing and delivered to the
customer:
(1) A statement of the fee charged, if known, or a statement of the
approximate range of fees charged;
(2) If it is the invention developer's normal practice to seek more than
one contract in connection with the invention developer's services to a
given customer or if the invention developer normally seeks to perform
services for a customer in more than one phase with the performance of
each phase covered in two or more contracts, a statement describing that
practice with a summary of the normal terms of each such contract
including the fee for the service to be performed under each such
contract as set forth in subdivision (1) of this section;
(3) A statement which in reasonable detail summarizes the services which
the invention developer intends to provide under the initial contract and
each succeeding contract with the customer. If the invention developer's
services are limited to mailing notices to a list of potentially
interested parties and then awaiting their response, the statement shall
make this fact clear;
(4) A statement that sections 417.400 to 417.436 require the invention
developer to keep confidential and not use for his benefit or for the
benefit of others any information disclosed by the customer except as
provided in section 417.427. If the invention developer intends to
disclose any of such confidential information to others, he shall include
a statement as to the nature of the information to be so disclosed,
including the fact that the customer will be required to waive such
confidentiality obligation to the extent necessary to permit such
disclosure;
(5) A statement setting forth the total number of customers who have
contracted with the invention developer and the number of those customers
who have received, by virtue of the invention developer's performance of
invention development services, an amount of money in excess of the total
fee paid by those customers to the invention developer pursuant to a
contract for invention development services. The numbers entered in such
statement need not include those who have first contracted with the
invention developer during the six months immediately preceding the date
of the written disclosures nor those who have contracted with the
invention developer prior to August 28, 1995; and
(6) A statement as follows: "Any contract for invention development
services between you and ourselves is regulated by law. We are not
qualified or permitted to advise you whether protection of your invention
is available under the patent laws of the United States or any other
laws. If your invention is patentable or infringes an existing valid
patent, your failure to inquire into these matters may affect your rights
to your invention or make you liable to others for patent infringement.
Furthermore, disclosure of your invention to others on a nonconfidential
basis may also adversely affect your rights. We urge you to seek the
counsel of an attorney or agent registered to practice before the United
States Patent and Trademark Office.". (L. 1995 S.B. 80 & 88)
Every contract for invention development services shall set
forth in at least 10-point boldface type, or equivalent size if
handwritten, all of the following:
(1) A full and detailed description of the acts or services that the
invention developer undertakes to perform for the customer. To the extent
that the description of acts or services grants the invention developer
discretion to decide what acts or services are to be performed by the
invention developer, the invention developer shall exercise that
discretion to promote the best interests of the customer;
(2) A statement whether the invention developer undertakes to construct
one or more prototypes, models, or devices embodying the customer's
invention;
(3) A statement whether the invention developer undertakes to sell or
distribute one or more prototypes, models or devices embodying the
customer's invention;
(4) The name of the person or firm contracting to perform the invention
development services, the name under which said person or firm is doing
business as an invention developer, and the name of any parent,
subsidiary or affiliated company that may engage in performing the
invention development services;
(5) The invention developer's principal business address and the name and
address of his agent in the state of Missouri authorized to receive
service of process;
(6) The business form of the invention developer, whether corporate,
partnership, or otherwise;
(7) If an oral or written estimate of projected customer sales, profits,
earnings or royalties is made by the invention developer, the contract
shall state the estimate and the data on which the estimate is based;
(8) The name and address of the custodian of all records and
correspondence relating to the performance of the invention development
services;
(9) The expected date of completion of the invention development
services, whether time is of the essence, and whether the terms include
provisions in case of delay past the expected date of completion;
(10) The terms and conditions of payment and contract termination rights
as set forth in section 417.412; and
(11) The extent to which the contract effectuates or makes possible the
acquisition by the invention developer of an interest in the title to the
customer's invention. (L. 1995 S.B. 80 & 88)
1. A contract for invention development services shall have a
conspicuous and legible cover sheet attached. The cover sheet shall set
forth:
(1) The name, home address, office address and local address of the
invention developer; and
(2) The following notice printed in bold-faced type of not less than
10-point size:
"The contract between you and the invention developer is regulated by
sections 417.400 to 417.436. You are not required to make any payments
under this contract until seven working days after you sign this contract
and receive a completed copy of it.
"You can terminate this contract at any time before you make payment. You
can terminate this contract simply by not submitting the initial payment.
"If you assign a partial interest in the invention to the invention
developer, the invention developer may have the right to assign or
license the developer's interest in the invention, or make, use and sell
the invention, without your consent.
"You are encouraged to consult with an attorney with experience in patent
law before signing this contract. By proceeding without the advice of an
attorney with experience in patent law you could lose any rights you
might have in your idea or invention.
"The performance of the services detailed in the contract provides no
guarantee or promise of profits, or that your invention or idea will be
purchased by a manufacturer. The marketing or licensing of a new product
is a difficult and uncertain process with no guarantee of success or
profit.
"This contract does not provide any patent, copyright or trademark
protection for your idea or invention.
"Your potential patent rights may be adversely affected by any attempt to
commercialize your idea or invention before a patent application covering
your idea is filed. Nonconfidential disclosures of your idea or invention
may also trigger certain statutory deadlines for filing a patent
application in the United States and would prevent you from obtaining
valid patent rights in countries whose laws provide that patent
applications must be filed before any public disclosure.".
2. The cover notice may not contain anything in addition to the
information required by subsection 1 of this section. (L. 1995 S.B. 80 &
88)
Until payment for invention development services is made, the
parties to a contract for invention development services have the option
to terminate the contract. The customer may exercise the option by
failing to make payment to the invention developer. The invention
developer may exercise the option to terminate by giving to the customer
a written notice of his exercise of the option. The written notice
becomes effective on its receipt by the customer. Notwithstanding any
contractual provision to the contrary, payment for invention development
services may not be required, made, or received, before the seventh day
after the day on which the customer receives a fully executed copy of the
contract. (L. 1995 S.B. 80 & 88)
1. Every invention developer rendering or offering to render
invention development services in this state, who has had, or is
affiliated with another who has had, a decree or judgment entered against
him by a court or agency of a state of the United States, or a court or
agency of the United States, resulting from or based on allegations of
misrepresentation, deception, mishandling of customers' funds, unfair
trade practices, fraud or concealment or omission of facts from others,
shall maintain a bond issued by a surety company admitted to do business
in this state. The principal sum of the bond shall be twenty-five
thousand dollars. The bond shall be payable to the state of Missouri as
trustees for the customers of the invention developer and shall be
conditioned upon compliance by the invention developer with sections
417.400 to 417.436. A copy of such bond shall be filed with the director
of the department of economic development prior to the time the invention
developer first commences business in this state. The invention developer
shall have ninety days after the end of each fiscal year within which to
change the bond as may be necessary to comply with the requirements of
this section.
2. Instead of furnishing the bond required by subsection 1 of this
section, the invention developer may deposit with the director of the
department of economic development a cash deposit in the like amount.
This cash deposit may be satisfied by any of the following:
(1) Certificates of deposit payable to the director of the department of
economic development issued by banks doing business in this state and
insured by the Federal Deposit Insurance Corporation;
(2) Investment certificates of share accounts assigned to the director of
the department of economic development and issued by a savings and loan
association doing business in this state and insured by the Federal
Deposit Insurance Corporation;
(3) Bearer bonds issued by the United States government or by this state;
or
(4) Cash deposited with the director of the department of economic
development. (L. 1995 S.B. 80 & 88)
1. In payment for invention development services, the invention
developer shall not take from a customer a negotiable instrument other
than a check as evidence of the obligation of the customer.
Notwithstanding any provision of chapter 400, RSMo, to the contrary, a
holder of a negotiable instrument is not a holder in due course if he
takes a negotiable instrument taken from a customer in violation of this
section.
2. No contract for invention development services shall require the
execution of any note or draft or series of notes or drafts by the
customer which, when separately negotiated, will cut off as to third
parties any right of action or defense which the customer may have
against the invention developer. (L. 1995 S.B. 80 & 88)
Every invention developer shall maintain all records and
correspondence relating to performance of each invention development
service contract for a period of not less than three years after
expiration of the term of each such contract or completion of all
obligations pursuant to the invention development service contract,
whichever is later. The records and correspondence required to be
maintained by this section shall be made available to the customer or his
representative for review and copying at the customer's expense on the
invention developer's premises during normal business hours upon seven
days' written notice, such time period to begin from the date the notice
is placed in the United States mail, properly addressed with first-class
postage prepaid. (L. 1995 S.B. 80 & 88)
1. Any contract for invention development services that does not
comply with the applicable provisions of sections 417.400 to 417.436 is
unenforceable against the customer as contrary to public policy;
provided, that no contract is unenforceable if the invention developer
proves that noncompliance was unintentional and resulted from a bona fide
error in spite of the developer's use of reasonable procedures adopted to
avoid any such errors, and if the developer makes an appropriate
correction.
2. Any contract for invention development services entered into by a
customer with an invention developer who has used any fraud, false
pretense, false promise, misrepresentation, misleading statement, or
deceptive practice, in respect to that customer with the intent that the
customer rely thereon, whether or not the customer was in fact misled,
deceived, or damaged, is unenforceable against the customer.
3. Any waiver by the customer of the provisions of sections 417.400 to
417.436, except the waiver of confidentiality as provided in subsection 2
of section 417.427, is contrary to public policy and is void and
unenforceable. (L. 1995 S.B. 80 & 88 § 417.424 subsecs. 1 to 3)
1. Any invention developer who violates any provision of
sections 417.400 to 417.436, or who makes any false or fraudulent
statement, representation, or omission of material fact, or fails to make
all the disclosures required by sections 417.400 to 417.436, shall be
civilly liable to any person injured thereby in the amount of at least
twice the damages sustained by such person together with costs and
reasonable attorney's fees. In addition, if the invention developer is
found to have acted with malice, the court in its discretion may award
punitive damages. For purposes of this subsection, the amount of damages
sustained by the person shall be presumed to be at least the amount of
all moneys paid to the invention developer by such person.
2. Failure to make the disclosures required by sections 417.400 to
417.436 renders any contract subsequently entered into between the
customer and the invention developer voidable by the customer.
3. The attorney general shall enforce the provisions of sections 417.400
to 417.436 and may recover a civil penalty and may seek equitable relief
to restrain the violation of sections 417.400 to 417.436. (L. 1995 S.B.
80 & 88 § 417.424 subsecs. 4 to 6)
1. An invention developer shall maintain as confidential and not
use for his own benefit or for the benefit of others all disclosures made
to him by a customer seeking invention development services, whether or
not the customer actually retains the invention developer's services.
This duty of confidentiality applies to all such information except:
(1) Information which at the time of disclosure is in the public domain;
(2) Information which, after disclosure, becomes part of the public
domain by publication or otherwise, independently of any act or omission
by the invention developer;
(3) Information which the invention developer can establish by competent
proof was in his possession at the time of disclosure by the customer,
and was not acquired, directly or indirectly, from the customer; or
(4) Information received by the invention developer from a third party
without restriction on disclosure or use; provided that such information
was not obtained by said third party with restriction on disclosure or
use, directly or indirectly, from the customer.
2. This duty of confidentiality shall include the taking of reasonable
steps by the invention developer to prevent disclosure of confidential
information to third parties. This confidential relationship cannot be
waived by a customer except by an express written waiver by the customer
of the invention developer's obligation of confidentiality, and no waiver
shall be entered into until after the disclosures set forth in section
417.403 have been made to the customer. (L. 1995 S.B. 80 & 88)
Any assignee of the invention developer's rights shall be
subject to all claims and defenses of the customer against the invention
developer existing in favor of the customer at the time of the
assignment. (L. 1995 S.B. 80 & 88)
For each contract for invention development services, the
invention developer, at least once each calendar quarter during the term
of the contract, shall deliver to the customer at the address specified
in the contract a written report that identifies the contract and that
sets forth:
(1) A full, clear, and concise description of the services performed to
the date of the report and of the services to be performed; and
(2) The name and address of each person, firm, or corporation, to whom
the subject matter of the contract has been disclosed, the reason for
each disclosure, the nature of the disclosure, and copies of all
responses received as a result of those disclosures. (L. 1995 S.B. 80 &
88)
The provisions of sections 417.400 to 417.436 are not exclusive
and do not relieve the parties or the contract subject thereto from
compliance with all other applicable provisions of law. (L. 1995 S.B. 80
& 88)
Sections 417.450 to 417.467 shall be known and may be cited as
"The Missouri Uniform Trade Secrets Act". (L. 1995 S.B. 80 & 88 § 1)
As used in sections 417.450 to 417.467, the following terms mean:
(1) "Improper means" includes theft, bribery, misrepresentation, breach
or inducement of a breach of a duty to maintain secrecy, or espionage
through electronic or other means;
(2) "Misappropriation":
(a) Acquisition of a trade secret of a person by another person who knows
or has reason to know that the trade secret was acquired by improper
means; or
(b) Disclosure or use of a trade secret of a person without express or
implied consent by another person who:
a. Used improper means to acquire knowledge of the trade secret; or
b. Before a material change of position, knew or had reason to know that
it was a trade secret and that knowledge of it had been acquired by
accident or mistake; or
c. At the time of disclosure or use, knew or had reason to know that
knowledge of the trade secret was:
i. Derived from or through a person who had utilized improper means to
acquire it;
ii. Acquired under circumstances giving rise to a duty to maintain its
secrecy or limit its use; or
iii. Derived from or through a person who owed a duty to the person
seeking relief to maintain its secrecy or limit its use;
(3) "Person", a natural person, corporation, business trust, estate,
trust, partnership, association, joint venture, governmental subdivision
or agency, or any other legal or commercial entity, whether for profit or
not for profit;
(4) "Trade secret", information, including but not limited to, technical
or nontechnical data, a formula, pattern, compilation, program, device,
method, technique, or process, that:
(a) Derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclosure
or use; and
(b) Is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy. (L. 1995 S.B. 80 & 88 § 2)
(2002) Claim under section for misappropriation of trade secrets based on
commercial activity within the United States comes within exception to
general grant of sovereign immunity under Foreign Sovereign Immunities
Act. BP Chemicals, Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677 (8th Cir.).
1. Actual or threatened misappropriation may be enjoined. Upon
application to the court, an injunction shall be terminated when the
trade secret has ceased to exist, but the injunction may be continued for
an additional reasonable period of time in order to eliminate commercial
advantage that otherwise would be derived from the misappropriation.
2. In exceptional circumstances, an injunction may condition future use
upon payment of a reasonable royalty for no longer than the period of
time for which use could have been prohibited. Exceptional circumstances
include, but are not limited to, a material and prejudicial change of
position prior to acquiring knowledge or reason to know of
misappropriation that renders a prohibitive injunction inequitable.
3. In appropriate circumstances, affirmative acts to protect a trade
secret may be compelled by court order. (L. 1995 S.B. 80 & 88 § 3)
1. Except to the extent that a material and prejudicial change
of position prior to acquiring knowledge or reason to know of
misappropriation renders a monetary recovery inequitable, a complainant
is entitled to recover damages for misappropriation. Damages can include
both the actual loss caused by misappropriation and the unjust enrichment
caused by misappropriation that is not taken into account in computing
actual loss. In lieu of damages measured by any other methods, the
damages caused by misappropriation may be measured by imposition of
liability for a reasonable royalty for a misappropriator's unauthorized
disclosure or use of a trade secret.
2. If misappropriation is outrageous because of the misappropriator's
evil motive or reckless indifference to the rights of others, the court
may award punitive damages. (L. 1995 S.B. 80 & 88 § 4)
In an action under sections 417.450 to 417.467, a court shall
preserve the secrecy of an alleged trade secret by reasonable means,
which may include granting protective orders in connection with discovery
proceedings, holding in-camera hearings, sealing the records of the
action, and ordering any person involved in the litigation not to
disclose an alleged trade secret without prior court approval. (L. 1995
S.B. 80 & 88 § 5)
An action for misappropriation shall be brought within five
years after the misappropriation is discovered or by the exercise of
reasonable diligence should have been discovered. For the purposes of
this section, a continuing misappropriation constitutes a single claim.
(L. 1995 S.B. 80 & 88 § 6)
1. Except as provided in subsection 2 of this section, sections
417.450 to 417.467 displace conflicting tort, restitutionary, and other
laws of this state providing civil remedies for misappropriation of a
trade secret.
2. Sections 417.450 to 417.467 shall not affect:
(1) Contractual remedies, whether or not based upon misappropriation of a
trade secret; or
(2) Other civil remedies that are not based upon misappropriation of a
trade secret; or
(3) Criminal remedies, whether or not based upon misappropriation of a
trade secret; or
(4) The discovery of facts, opinions, information, documents, things, and
any other matters discoverable in litigation, except in litigation which
alleges misappropriation of trade secrets as a cause of action. (L. 1995
S.B. 80 & 88 § 7)
Sections 417.450 to 417.467 shall be applied and construed to
effectuate their general purpose of making uniform the law with respect
to the subject of trade secrets among states enacting them. (L. 1995 S.B.
80 & 88 § 8)
With respect to a continuing misappropriation that began prior
to August 28, 1995, sections 417.450 to 417.467 shall not apply to the
continuing misappropriation that occurs after such date. (L. 1995 S.B. 80
& 88 § 9)
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