Missouri Revised Statutes

Chapter 417
Trademarks, Names and Private Emblems

August 28, 2013




Definitions.

417.005. 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)



Prohibited marks.

417.011. 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)



Registration of trademark--application, contents--information required by secretary of state--fee, how payable--refusal to register mark, procedure.

417.016. 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)



Additional fee--expiration date.

417.018. 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, 2017.

(L. 1994 S.B. 635, A.L. 2001 H.B. 453 merged with S.B. 288, A.L. 2008 S.B. 1150)

Expires 12-31-17



Certificate of registration, how issued--admissible as evidence--duplicate of certificate, application, fee--abstract of mark, fee.

417.021. 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)



Term of registration--notice of expiration, when required.

417.026. 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)



Assignment of mark, procedure.

417.031. 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)



Registry of marks open to public.

417.036. 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)



Cancellation of marks, when.

417.041. 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 cancelled;

(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.



Classes of goods and services--single application for mark to cover only one class.

417.046. 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)



Fraudulent filing or registration--civil damages to injured party.

417.051. 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)



Prohibited acts--civil action for damages, when.

417.056. 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)



Injunctive relief, when--order for payment to owner of mark--destruction of counterfeit marks.

417.061. 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)



Common law marks not affected--actions to require cancellation of a mark or to compel registration, venue, parties.

417.066. 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. 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.

3. 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.

(L. 1973 H.B. 281 14, A.L. 1995 S.B. 80 & 88, A.L. 2007 S.B. 613 Revision)



Facsimile of brands to be recorded.

417.100. 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



Recorder's certificate, evidence.

417.130. 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



Penalty.

417.140. 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



Misuse of names of certain societies prohibited.

417.150. 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



Use of emblems regulated.

417.160. 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)



Adoption of name and emblem--registration form, fee.

417.170. 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



Registration of emblem effective for five years, renewal procedure, fee.

417.175. 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)



Penalty for violation.

417.180. 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



Penalty for improper use of emblem of automobile club.

417.190. 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



Fictitious names to be registered.

417.200. 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, 351.110, 351.115



Registration, when and how--contents--cancellation of fictitious name--ownership reflected in registration, when--registration effective and expiration dates--renewals, contents, effective date.

417.210. 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, 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 businesses, registration, when--exemption from, when.

417.217. 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)



Registration fee.

417.220. 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



Penalty for failure to register.

417.230. 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



Owner of farm may register name of same.

417.240. 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



Description of mark, where filed--notice of use.

417.250. 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



Duties of recorder and secretary of state--fees.

417.260. 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)



Penalty for violation.

417.270. 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



What constitutes evidence.

417.280. 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



Acceptance of deposit does not constitute a sale.

417.290. 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



Dairy products containers--description, where filed--notice, how published--certificate of record.

417.300. 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



Receptacles--unlawful use.

417.310. 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



Receptacles--unlawful possession.

417.320. 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



Search warrants--prosecution.

417.330. 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



Penalty.

417.340. 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



Terms construed.

417.350. 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



"Sale" construed.

417.360. 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



Definitions.

417.400. 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)



Disclosures required to be made in writing by invention developer to customer, content.

417.403. 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)



Contract for invention development services, form, content.

417.406. 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)



Cover sheet required for contract content--additional information on cover prohibited.

417.409. 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)



Termination of contract, procedure--service on contract not required, when.

417.412. 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)



Bond required for invention developer, when, amount--copy to be filed with department of economic development--cash deposit accepted instead of bond.

417.415. 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)



Payment for services to be by check--taking other negotiable instrument, effect--contract limitation--execution of note or series of notes prohibited.

417.418. 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 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)



Records and correspondence retention requirement--customer's right to copy, cost, procedure.

417.421. 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)



Contract unenforceable against customer, when, exceptions--waiver by customer void, exception.

417.424. 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)



False or fraudulent statements, failure to make required disclosures, civil liability--damages--punitive damages, when--attorney general's duties.

417.426. 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)



Confidentiality of all disclosures by customer, exceptions--waiver by customer must be in writing after receiving disclosure.

417.427. 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)



Assignee of invention developer subject to all claims and defenses of customer.

417.430. 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)



Report in writing to be delivered quarterly to customer--content.

417.433. 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)



Invention developer law not exclusive subject to applicable laws.

417.436. 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)



Law how cited.

417.450. 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)



Definitions.

417.453. 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.).



Misappropriation, actual or threatened may be enjoined--injunction terminates, when--exceptional circumstances, defined.

417.455. 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)



Damages for misappropriation--punitive damages awarded, when.

417.457. 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)



Court's duty in misappropriation, action to preserve secrecy of trade secret.

417.459. 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)



Action for misappropriation must be brought when, time limitation--continuing misappropriation is one claim.

417.461. 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)



Action for misappropriation displaces certain other actions for recovery--actions civil and criminal not affected.

417.463. 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)



Purpose of the uniform law.

417.465. 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)



Effect of existing misappropriation prior to August 28, 1995.

417.467. 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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