1. Code Section The registration of a trademark in Nevada is governed by Nevada Revised Statutes ( NRS ) et seq.

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1 Last Updated: July 2017 Nevada Greenberg Traurig, LLP* Morishita Law Firm, LLC** Las Vegas, NV A. State Trademark Registration Statute 1. Code Section The registration of a trademark in Nevada is governed by Nevada Revised Statutes ( NRS ) et seq. 2. Model Act Provisions The Nevada statute is based on the Model Act. 3. Administrator The Secretary of State is responsible for administering the statute: Secretary of State of Nevada Trademarks 555 E. Washington Avenue, Suite 5200 Las Vegas, NV (702) ; fax (702) website: nvsos.gov *Greenberg Traurig, LLP is an international, multi-practice law firm with 2,000 attorneys and government law and policy professionals in 38 locations in commercial centers across the United States, Latin America, Europe, Asia, and the Middle East. The firm is #1 on the Law list based on number of US lawyers. Members of the Las Vegas office are admitted to practice in California, Nevada and elsewhere. The practice of the Las Vegas office encompasses a full range of intellectual property activities, including patent prosecution, IP licensing, contract negotiations, and litigation in all state and federal courts. The firm s principal contributors to this entry are the Founding Shareholder of the Las Vegas office, Mark G. Tratos and Shauna Norton. **The practice of the Morishita Law Firm is primarily within the area of intellectual property and includes matters of patent, trademark, copyright, rights of privacy and unfair competition. The firm s practice encompasses a full range of IP and related activities including patent and trademark prosecution, IP licensing and assignment and contract negotiation. Members of the firm are admitted to practice in Nevada, Utah, Nebraska and Washington, D.C. The firm s principal contributors to this entry are Robert Ryan Morishita and Ira David. NV-1

2 A.4. STATE TRADEMARK LAW 4. Procedure for Applying for Registration a. Forms A state-provided form is required, and is available at gov/sos/sos-information/forms-all-divisions/trademark-forms. b. Number of Copies The original form along with a cover page and a specimen must be submitted. c. Fees A fee of $100 is to be submitted to the Secretary of State. d. Specimens A sample, or specimen, of use of the mark is required. A specimen must agree with the mark as described in the application, must agree with the mark as used, and evidence use of the mark. If the specimen is a drawing, it must be a substantially exact representation of the mark as actually used. The specimen must fit on a page of paper not larger than 8½ inches by 11 inches. The specimen may be a facsimile or photograph of the mark. The specimen must be suitable for reproduction, retention and retrieval. After registration, an applicant may not change the specimen if the change constitutes a material alteration of the mark. NRS No document which is written in a language other than English may be filed or submitted unless it is accompanied by a verified translation into the English language. NRS e. Drawing No special drawing is required for word mark applications. NRS Intent to Use Provision Nevada does not have a provision for the reservation of a mark with intent to use it in the future. NRS requires the mark to currently be in public use by the applicant. 6. Classification The Secretary of State may adopt regulations defining general classes of goods and services for which a mark may be registered. NRS (1). The Secretary of State has adopted the prior U.S. classification system. A separate application must be filed for each class in which the mark is used NRS (2). 7. Search Prior to Application The Office of the Secretary of State no longer conducts trademark NV-2

3 NEVADA A.11. searches prior to application. Potential registrants may conduct their own searches on-line under the Business Entities Search option of the Secretary of State website at 8. Search Prior to Registration The Office of the Secretary of State does conduct a search prior to issuing a registration. The Office searches all mark registration records for identical marks and marks confusingly similar to the mark sought to be registered. 9. Doing Business Requirement None. Any person who adopts and uses a mark in Nevada may file an application to register. Whether or not a mark is used is defined in NRS For trademark purposes, a mark is used for goods when the mark is placed on the goods, their containers, their display, or on tags or labels for the goods and the goods are sold or distributed to the public in the state. A mark is used for services when the mark is used or displayed in the sale or advertising of the services within the state. 10. Types of Marks Registrable Marks consisting of trademarks, trade names, and service marks are registrable; NRS The term mark is defined in NRS ; the term service mark is defined in NRS ; the term trademark is defined in NRS ; and the term trade name is defined in NRS There is no provision for registration of certification marks and collective marks within the Nevada Revised Statutes. 11. Restrictions A mark cannot be registered if it: (1) contains immoral, deceptive or scandalous matter; (2) contains matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, national symbols or which may bring them into contempt or disrepute; (3) resembles or simulates the flag or other insignia of the United States, or of any state or municipality, or of any foreign nation; (4) contains the name, signature, or portrait of any living person, except when his written consent has been obtained; (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; (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. This subsection does not prevent the registration of a mark used by the applicant which has become NV-3

4 A.12. STATE TRADEMARK LAW distinctive of the applicant s goods or services. Proof of continuous use of a mark by the applicant in this state or elsewhere for five years next preceding the date of the filing of the application for registration may be accepted by the Secretary of State as evidence that the mark has become distinctive; or (6) so resembles a mark registered in this state which has not been abandoned, that it is likely that confusion, mistake or deception may result. NRS Use in State Use in the state is a prerequisite to registration. Use is defined in NRS , and is required by NRS The date when the mark was first publicly used in the state by the applicant must precede the filing of the application. If a date of first use in an application is indefinite, the registration must designate the latest definite date that can be inferred from the words used. If a month and year are given without specifying the day, the date is presumed to be the last day of the month. If only a year is given, the date is presumed to be the last day of the year. NRS Term of Registration Registration is effective for five years from the date of registration. NRS (1). 14. Amendment of Registration If any statement in an application for registration of a mark was incorrect when made, or any arrangements or other facts described in the application have changed, making the application inaccurate in any respect, without materially altering the mark, the registrant shall promptly file a certificate with the Secretary of State, signed by the registrant or his successor or by a member of the firm or an officer of the corporation or association to which the mark is registered, correcting the statement. NRS (1). Upon the filing of a certificate of amendment or judicial decree of amendment and the payment of a filing fee of $60, the Secretary of State shall issue, in accordance with NRS , an amended certificate of registration for the remainder of the period of the registration. NRS (2). 15. Renewal Registration may be renewed for successive five-year terms upon an application filed within six months before the expiration of the initial registration term and payment of a renewal fee of $50. Renewal is accomplished on a form furnished by the Secretary of State. NRS (1). The application for renewal must include a statement that the mark is still in public use in Nevada. NRS (4). Submission NV-4

5 NEVADA A.21. of a facsimile or specimen along with the renewal application is not required. The Secretary of State is required to give notice to each registrant of expiration of the registration within one year preceding the expiration date by writing to the registrant s last known address. NRS (3). 16. Renewal Forms Only the renewal form supplied by the Secretary of State may be used. A combined renewal/application form is not available. Currently the renewal form is sent by the Secretary of State along with the notice sent within the year preceding the expiration date of the registration, or may be generated upon request by the Secretary of State s Las Vegas office, which may be contacted at (702) Other Forms Forms for registration, assignment, amendment/correction, and cancellation are available from the Secretary of State. These forms may be downloaded from the forms page of the Secretary of State website at Post-Registration Forms Use of the forms is mandatory. 19. Fees After Registration A renewal fee of $50 is required NRS (1). If the mark is assigned, an assignment fee of $100 is required, NRS (1)(c). 20. Use Requirement for Renewal Use of the mark is required for renewal, NRS (4). No statutory distinction is made between use for registration and use for renewal. 21. Presumptions The certificate of registration or a certified copy thereof is admissible in evidence as competent and sufficient proof of the registration of the mark in any action or judicial proceeding in any court of Nevada, and raises a disputable presumption that the person to whom the certificate was issued is the owner of the mark in the State of Nevada as applied to the goods or services described in the certificate. NRS (2). A disputable presumption is one that is not conclusive, but which is presumed to be true unless a preponderance of the evidence demonstrates otherwise. No other presumptions are created. NV-5

6 A.22. STATE TRADEMARK LAW 22. Remedies for Infringement Remedies available for infringement of a registered mark are as follows: A civil suit may be brought to enjoin the manufacture, use, display, or sale of counterfeits or imitations of the mark, and for all profits derived from the defendant s wrongful acts and all damages suffered by reason of these acts. NRS (1) and 2(b). The court may also order that any counterfeits or imitations in the possession or under the control of any defendant be delivered for destruction to an officer of the court or to the complainant. NRS Profits and damages are recoverable from one who knowingly reproduces counterfeits, copies, or colorably imitates any registered mark and causes the copy to apply to labels, advertisements, or the like in conjunction with the sale or distribution of goods or services, at the direction of a court of competent jurisdiction. NRS The court may require the infringer to pay treble damages on all profits and damages resulting from willful and wrongful acts. NRS (2)(c). The court may also award costs and reasonable attorney fees to the prevailing party. NRS (3). The registrant s rights to prosecute under any penal laws of the state, and to enforce any common law rights not enumerated in the statute, are preserved. NRS (4); NRS NRS provides that any of the following acts constitutes a misdemeanor: (1) to imitate any mark registered as provided in NRS to ; (2) to use knowingly any counterfeit or imitation thereof; (3) to use or display such genuine mark unless authorized to do so; or (4) to use or display such genuine mark in a manner not authorized by the registrant. 23. Persons Entitled to Sue The owner of the registered mark may sue for infringement. NRS , The owner of a common law mark may also enforce his or her trademark right by suit. NRS See also, A.L.M.N., Inc. v. Rossof, 104 Nev. 274, 757 P.2d 1319 (1988). B. Dilution 1. Code Section Originally, the anti-dilution section of the Model Act was intentionally omitted by the state legislature. In 2001, the Nevada trademark statute was amended to include an anti-dilution provision permitting the owner of a mark that is famous in Nevada to bring an action to enjoin commercial use of the mark by a person if such use (a) begins after the NV-6

7 NEVADA B.7. mark has become famous; and (b) causes dilution of the mark. NRS (1). 2. Judicially Created Dilution Doctrine No relevant cases. 3. Tarnishment There is no requirement of tarnishment only that the junior use cause dilution. Dilution is defined as a lessening in the capacity of a mark that is famous to identify and distinguish goods or services. NRS (5)(b). 4. Likelihood of Confusion The statute explicitly states that dilution may occur regardless of the presence or absence of likelihood of confusion, mistake, or deception as to the source or origin of goods or services. NRS (5)(b)(2). 5. Competition Between the Parties The statute explicitly states that dilution may occur regardless of the presence or absence of competition between the parties. NRS (5)(b)(1). 6. Fame or Distinctiveness To be actionable, a junior use must be commercial and must begin after the mark has become famous. NRS (1). In determining whether a mark is famous in Nevada, the court shall consider, without limitation: (a) the degree of inherent or acquired distinctiveness of the mark in Nevada; (b) the duration and extent of use of the mark in connection with the goods and services with which the mark is used; (c) the duration and extent of advertisement and promotion of the mark in Nevada; (d) the geographical extent of the trading area in which the mark is used; (e) the channels of trade for the goods or services with which the mark is used; (f) the degree of recognition of the mark in the trading areas and channels of trade in Nevada used by the owner of the mark and the person against whom the injunction is sought; (g) the nature and extent of the use of the same or similar mark by other persons; (h) whether the mark is registered in Nevada or registered in the United States Patent and Trademark Office pursuant to federal law. NRS (2). 7. Remedies Injunctive relief is available in a dilution action. Damages or profits may be available if the person using the mark willfully intended to cause dilution of the mark or willfully intended to trade on the NV-7

8 B.8. STATE TRADEMARK LAW reputation of the owner of the mark. NRS (3). The owner of a famous mark may not bring a dilution action for fair use of the mark in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the mark. NRS (4). Also exempted are non-commercial uses of a mark such as research, criticism, news commentary, news reporting, teaching, or any similar use that is not primarily for profit. NRS (5)(a). 8. Leading Cases No reported cases have been decided under the Nevada anti-dilution statute. However, the statute is patterned after the federal antidilution statute. Thus, Nevada courts would likely look to cases under the federal anti-dilution statute in interpreting the Nevada antidilution statute. It appears that there are still no Nevada Supreme Court cases decided under the Nevada anti-dilution statute. See Russell Rd. Food & Bev., LLC v. Galam, 180 F. Supp. 3d 724 (D. Nev. 2016) (recognizing the similarity between the federal act and Nevada s anti-dilution statute and referring to the federal law as necessary to interpret the factors under NRS ). 9. Extraterritorial Effect The extraterritorial effect under the Nevada anti-dilution statute has not been addressed. 10. Preemption Cases The preemptive effect of the federal anti-dilution statute on the Nevada anti-dilution statute has not been addressed. C. Unfair Business Practices Act 1. Code Section Nevada s statutes governing unfair business practices are included in the Deceptive Trade Practice Act, NRS to , and the Unfair Trade Practices Act, NRS 598.A.010 to 598.A Scope Nevada s Deceptive Trade Practices Act, NRS to governs false designations of ownership, source, sponsorship, approval, certification, affiliation, geographic origin, characteristics, ingredients, uses, benefits, quantities available, status as new or used, prior deterioration or repair, standard, quality, grade, style or model, price, or other representation of fact, in commercial transactions of goods and services including goods of others. The scope of the statute covers NV-8

9 NEVADA C.3. all commercial transactions, with specific statutory provisions relating to pyramid promotional schemes and endless chains, NRS to , solicitations for or on behalf of, charitable organizations, NRS , sales promotions, NRS , door-to-door sales, NRS , sellers of travel, NRS , sightseeing tours, NRS (effective July 1, 2017), grant writing services, NRS , credit service organizations, organizations for buying goods and services at a discount, dance studios and health clubs, NRS , and telecommunication services, NRS In 2007, the Nevada Legislature added a section to Chapter 598 to include deceit in advertising or conducting live musical performances or productions. NRS Nevada also has statutory provisions directed to enabling individuals to request not to receive unsolicited telephone calls for sale of goods and services NRS Nevada defines a registry as being a database of telephone numbers of persons requesting not to receive unsolicited telephone calls for sale of goods or services, and permits such registry to be formed by either the federal registry or a state registry, NRS , , Nevada prohibits a telephone solicitor from intentionally making an unsolicited telephone call for the sale of goods or services to a telephone number in the currently effective version of the list of telephone numbers in a state registry. NRS Exceptions to the prohibition include specified telephone calls from charitable, religious, or political organizations, NRS , and telephone calls to those with preexisting business relationships with the telephone solicitor, NRS Nevada s Unfair Trade Practices Act, NRS 598A.010 to 598A.280 governs all activities which constitute a contract, combination or conspiracy that restrain the open and competitive trade market for goods and services in the State of Nevada. 3. Prohibited Activities The Nevada Deceptive Trade Practices Act defines Deceptive Trade Practices to include: (1) knowingly passing off goods or services for sale or lease as those of another person; (2) knowingly making a false representation as to the source, sponsorship, approval or certification of goods or services for sale or lease; (3) knowingly making a false representation as to affiliation, connection, association with or certification by another person; (4) using deceptive representations of designations or geographic origin in connection with goods or services for sale or lease; (5) knowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods or services for sale or lease or a false representa- NV-9

10 C.3. STATE TRADEMARK LAW tion as to the sponsorship, approval, status, affiliation, or connection of a person therewith; (6) representing that goods for sale or lease are original or new if a person knows or should know that they are deteriorated, altered, reconditioned, reclaimed, used or secondhand; (7) representing that goods or services for sale or lease are of particular standard, quality or grade, or that such goods are of a particular style or model, if a person knows or should know that they are of another standard, quality, grade, style or model; (8) disparaging the goods, services or business of another by false or misleading representation of fact; (9) advertising goods or services with intent not to sell or lease them as advertised; (10) advertising goods or services for sale or lease with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity; (11) advertising goods or services as being available free of charge with intent to require payment of undisclosed costs as a condition of receiving the goods or services; (12) advertising under the guise of obtaining sales personnel when the purpose is to first sell or lease goods or services to the sales personnel applicant; (13) making false or misleading statements of fact concerning the price of goods or services (14) fraudulently altering any contract, written estimate of repair, written statement of charges or other document in connection with the sale or lease of goods or services; (15) knowingly making any other false representation in a transaction; (16) knowingly falsifying an application for credit relating to a retail installment transaction as defined in NRS NRS Other deceptive trade practices include: knowingly failing to identify goods for sale or lease as being damaged by water; soliciting by telephone or door-to-door as a lessor or seller, unless the lessor or seller identifies himself, whom he represents and the purpose of his call within 30 seconds after beginning the conversation; knowingly stating that services, replacement parts or repairs are needed when no such services, replacement parts or repairs are actually needed; failing to make delivery of goods or services for sale or lease within a reasonable time or to make a refund for the goods or services, if he allows refunds; advertising or offering an opportunity for investment while (a) representing that the investment is guaranteed, secured or protected in a manner which he knows or has reason to know, is false or misleading or (b) representing that the investment will earn a rate of return which he knows or has reason to know is false or misleading or (c) making any untrue statement of a material fact or omitting to state a material fact that is necessary to make another statement, considering the circumstances under which it is made, not misleading or (d) failing to maintain adequate records so that an investor may determine how his NV-10

11 NEVADA C.3. money is invested or (e) failing to provide information to an investor after a reasonable request for information concerning his investment or (f) failing to comply with any law or regulation for the marketing of securities or other investments or (g) representing that he is licensed by an agency of the state to sell or offer for sale investments or services for investments if he is not so licensed; charging a fee for advice with respect to investment of money and failing to disclose that (i) he is selling or offering to lease goods or services and, if he is, their identity or (ii) that he is licensed by an agency of any state or of the United States to sell or to offer for sale investments or services for investments, or holds any other license related to the service he is providing; notifying any person, by any means, as a part of an advertising plan or scheme, that he has won a prize and that as a condition of receiving the prize he must purchase or lease goods or services; knowingly misrepresents the legal rights, obligations or remedies of a party to a transaction; fails, in a rescinded, cancelled, or otherwise terminated consumer transaction, to promptly restore a deposit, down payment or other payment or, in the case of property traded in but not available, the agreed value of the property, or fails to cancel within a specified time or an otherwise reasonable time an acquired security interest; fails to inform customers that he does not allow refunds or exchanges; knowingly takes advantage of another person s inability to reasonably protect his or her own rights or interferes in a consumer s transaction when such an inability is due to illiteracy, or to a mental or physical infirmity or another similar condition; charges a fee to a person to change or update any record, including, without limitation, billing or credit information, which relates to the person requesting the change or update. NRS Other deceptive trade practices include issuing a gift certificate that expires on a certain date, unless either the expiration date of the gift certificate or a toll-free telephone number that the buyer may call to obtain the balance of the gift certificate and the expiration date is printed plainly and conspicuously on the gift certificate in a readily visible manner; imposing upon the buyer or holder of a gift certificate a service fee, unless the amount of the service fee, the event that will cause the service fee to be imposed, the frequency with which the service fee will be imposed, and, if the service fee will be imposed on the basis of inactivity, the duration of inactivity that will cause the service fee to be imposed, is printed plainly and conspicuously on the gift certificate in a readily visible manner; imposing upon the buyer or holder of a gift certificate a service fee or a combination of service fees that exceed a total of $1 per month or a service fee that commences or is imposed within the first 12 months after the issuance of the gift NV-11

12 C.3. STATE TRADEMARK LAW certificate, NRS Yet other deceptive trade practices include conducting a business or occupation without all required state, county or city licenses; failing to disclose a material fact in connection with the sale or lease of goods or services; violating a state or federal statute or regulation relating to the sale or lease of goods or services; using coercion, duress or intimidation in a transaction, NRS ; making an assertion of scientific, clinical or quantifiable fact in an advertisement which would cause a reasonable person to believe that the assertion is true, unless, at the time the assertion is made, the person making it has possession of factually objective scientific, clinical or quantifiable evidence which substantiates the assertion; or failing upon request of the Commissioner or Attorney General to produce within 6 working days the substantiating evidence in his possession at the time the assertion of scientific, clinical or quantifiable fact was made NRS In 2007, NRS was added, making it a deceptive trade practice to advertise, conduct, or produce a live musical production or performance in which false, deceptive, or misleading information is given regarding the affiliation, connection, or association between a performing group and a recording group. The Nevada Deceptive Trade Practices Act has further specific prohibitions regarding prerecorded solicitations NRS , bait and switch advertising NRS , telephone solicitations NRS , pyramid promotional schemes NRS , charitable solicitations NRS , sales promotions and contests NRS , door to door sales NRS , sellers of travel NRS , sightseeing tours NRS (effective July 1, 2017), grant writing services NRS , credit service organizations NRS , dance studios and health clubs NRS , organizations for buying goods at a discount NRS , telecommunication services NRS Unfair Trade Practices under NRS 598.A010 to 598A.280 include: the acts of persons which result in the restraint of trade and commerce; acts which destroy free and open competition in our market system and, thereby, result in increased costs and deterioration in quality of commodities and services to the citizens of the State of Nevada; acts which result in economic hardships in the form of increased consumer prices and increased taxes upon many citizens of the State of Nevada least able to bear such increased costs. NRS 598A.030. Nevada s Unfair Trade Practices Act prohibits: (1) price fixing, which consists of raising, depressing, fixing, pegging or stabilizing the price of any commodity or service, and which includes, but is not limited to: (a) agreements among competitors to depress prices at NV-12

13 NEVADA C.3.b. which they will buy essential raw material for the end product, (b) agreements to establish prices for commodities or services, (c) agreements to establish uniform discounts, or to eliminate discounts, (d) agreements between manufacturers to price a premium commodity a specified amount above inferior commodities, (e) agreements not to sell below cost, (f) agreements to establish uniform trade-in allowances, (g) establishment of uniform cost surveys, (h) establishment of minimum markup percentages, (i) establishment of single or multiple basing point systems for determining the delivered price of commodities, (j) agreements not to advertise prices, (k) agreements among competitors to fix uniform list prices as a place to start bargaining, (l) bid rigging, including the misuse of bid depositories, foreclosures of competitive activity for a period of time, rotation of jobs among competitors, submission of identical bids, and submission of complementary bids not intended to secure acceptance by the customer, (m) agreements to discontinue a product, or agreements with anyone engaged in the manufacture of competitive lines to limit size, styles or quantities of items comprising the lines, (n) agreements to restrict volume of production, (2) division of markets, consisting of agreements between competitors to divide territories and to refrain from soliciting or selling in certain areas. (3) allocation of customers, consisting of agreements not to sell to specified customers of a competitor. (4) tying arrangements, consisting of contracts in which the seller or lessor conditions the sale or lease of commodities or services on the purchase or leasing of another commodity or service. (5) monopolization of trade or commerce in this state, including, without limitation, attempting to monopolize or otherwise combining or conspiring to monopolize trade or commerce in this state, and (6) other than as an investment or in the formation of a subsidiary or other business organization, managing stock or equity interest in such a manner as results, or attempts to result, in the monopolization of trade or commerce in this state, or otherwise substantially lessens competition or restrains trade. NRS 598A.060. a. Consumer Products In 2013, the Nevada legislature added a provision restricting certain activities of vendors of floral or ornamental products or services. NRS b. Ticket Broker Sales In 2017, the Nevada legislature added a provision regulating the manner in which tickets to an athletic contest or live entertainment event may be sold in certain circumstances, prohibiting the use of an Internet robot for certain purposes relating to ticket acquisition and NV-13

14 C.3.c. STATE TRADEMARK LAW subsequent resale or offer to sell, providing penalties, and providing other matters properly relating thereto. The prohibited activities include using an Internet robot to circumvent any portion of the process of purchasing an event ticket, or security, identity, validation or access control. The prohibition includes purchasing more tickets than the maximum allowed for purchase by one person. SB 235, sec. 2-18, 79th Leg. (Nev. 2017), effective October 1, c. Motor Vehicles In 2017, the Nevada legislature added a provision prohibiting certain persons from installing, requiring to be installed or using certain technology devices in a motor vehicle in certain circumstances, providing a penalty and providing other matters properly relating thereto. NRS (10) and (11), effective October 1, Remedies a. State Administrative Enforcement Under Nevada s Deceptive Trade Practices provisions, actions may be initiated by the state Attorney General. NRS Additionally, an action may be initiated independently by the District Attorney of the county in which a violation occurs. NRS to The Attorney General shall enforce the provisions of Nevada s Unfair Trade Practices Act, investigate all suspected violations, and institute proceedings on behalf of the state for injunctive relief, civil, or criminal penalties for violations of the chapter. NRS 598A.070. A district attorney acting with the permission or at the direction of the Attorney General may also institute proceedings in the name of the State of Nevada. NRS 598A.070(2). b. Criminal Enforcement Perpetrators of knowing and willful deceptive trade practices are guilty of misdemeanors for first offenses, gross misdemeanors for second offenses, and category D felonies for third and subsequent offenses under the Deceptive Trade Practices Act NRS (3). A person who conspires to, or does, violate any of the provisions of the Nevada Unfair Trade Practices Act is guilty of a Category D felony. NRS 598A.280. c. Civil Penalties Under Nevada s Deceptive Trade Practices Act, civil remedies may include preliminary or permanent injunction, suspension, forfeiture, or revocation of any charter, license, or certificate, revocation of authority of foreign corporation to do business within the state, dissolution of domestic corporations, attorney s fees or other appro- NV-14

15 NEVADA C.4.f. priate relief as the court may grant. NRS Violators of the provisions may be subject to a civil penalty of up to $5,000 per violation. NRS If the victim targeted is elderly or disable, an additional civil penalty of $12,500 may be imposed. NRS Under Nevada s Unfair Trade Practices Act, civil penalties can include civil suits initiated by the Attorney General with aggregate damages including up to 5 percent of the gross income realized by the sale of commodities or services sold by such persons in this state in each year in which the prohibited activities occurred. NRS 598A.170. Penalties against a domestic corporation or association may include the dissolution of the corporation or association or the suspension of the privilege to conduct business within Nevada and penalties against a foreign corporation or association may include the revocation or suspension of franchises, privileges and powers connected with doing business within Nevada. NRS 598A A.190. d. Private Actions and Remedies Victims of consumer fraud may bring civil actions for actual damages. NRS Attorney s fees and costs at the discretion of the court are permissive where the damage recovery is less than $20,000, or where the non-recovering party asserted claims, counterclaims, cross-claims, third-party complaints, or defenses of no merit in order to harass the prevailing party. NRS Consumer fraud includes all deceptive trade practices defined in NRS to NRS Private individuals can also file suit seeking injunctive relief from violations of Nevada s Unfair Trade Practices Act. Plaintiffs commencing private actions for threatened injury or damage to a business or property may be awarded injunctive relief. If the plaintiff is awarded a permanent injunction, he will also be awarded attorney fees and costs. NRS 598A.210(1). Plaintiffs commencing, and prevailing in, private actions for actual injury or damage to a business or property may be awarded treble damages and attorney fees and costs. NRS 598A.210(2). e. Class Actions Actions may be brought by individual victims of consumer fraud or in the name of the State of Nevada. NRS , Class actions are not specifically addressed by statute. f. Notice Actions by a district attorney or attorney general must be preceded by appropriate notice, normally ten days, NRS , unless complying with the notice requirement would cause immediate harm to the public of this state or endanger the public welfare. NRS NV-15

16 C.4.g. STATE TRADEMARK LAW Service of notice shall be made by personal service within the State of Nevada, but if such service cannot be obtained, substituted service may be made in any of the following ways: (1) personal service outside the State of Nevada; (2) the mailing by registered or certified mail to the last known place of business, residence or both, whether inside or outside the State of Nevada, of such person for whom the notice is intended, in which event such service shall be deemed complete upon the third day following the mailing of any notice required under this section; (3) for other than a natural person, service shall be in the manner provided in the Nevada Rules of Civil Procedure for completing service of process on such a person, corporation, association or organization or (4) as any district court may direct in lieu of personal service within the State of Nevada. NRS g. Standing See C.4.a, C.4.d, above. h. Jurisdiction of Courts District courts have jurisdiction. Any action pursuant to Nevada s Deceptive Trade Practice Act may be brought in a district court in the county in which the defendant resides or has his principal place of business, or in the district court in Carson City if the parties consent, or in the district court in any county where a deceptive trade practice has occurred. NRS Any action pursuant to Nevada s Unfair Trade Practice Act is under the jurisdiction of the district courts. NRS 598A.090. i. Administrative Investigative Authority Where the Attorney General has reason to believe that a person has engaged or is engaging in any deceptive trade practice, he may: (1) request the person to file a statement or report in writing under oath or otherwise, (2) examine under oath any person in connection with the suspected deceptive trade practice, (3) examine any property or sample thereof, record, book, document, account or paper as he may deem necessary, (4) copy any record, book, document, account or paper examined or (5) impound any sample of property which may be material to the deceptive trade practice, pursuant to an order of any district court providing an opportunity for the accused to be heard and consideration of likelihood of damage to the accused. NRS Upon reasonable suspicion that an individual has information or evidence relevant to an investigation of unfair trade practices, the Attorney general may require that individual to: (1) submit to NV-16

17 NEVADA E.2. examination under oath, (2) answer written interrogatories under oath, or (3) produce requested relevant documents or other evidence for inspection and copying. NRS 598A.100. These demands shall not apply to information which may be privileged, and any information received shall be kept confidential unless an action for violation of the Unfair Trade Practices Act for initiated by the Attorney General; confidentiality is waived by the accused; disclosure is authorized by the district court; or, disclosure is to members of the federal government or another state government, as provided by NRS 598A A Administrator The Deceptive Trade Practices Act is administered by the Attorney General, NRS to The Unfair Trade Practices Act is administered by the Attorney General and District Attorney. NRS 598A Leading Cases State ex rel. List v Courtesy Motors, 95 Nev. 103, 590 P.2d 163 (1979); State ex rel. List v. AAA Auto Leasing & Rental, 93 Nev. 483, 568 P.2d 1230 (1977); Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d 108 (1974). D. Uniform Deceptive Trade Practices Act 1. State Statute Nevada has not adopted the Uniform Deceptive Trade Practices Act. See Section C., above, for applicable deceptive and unfair trade practices provisions. E. Trademark Counterfeiting 1. Specific Statutes In addition to being covered under NRS to , counterfeiting of trademarks is governed by NRS to Definition The statute does not define counterfeiting specifically, relying on its plain meaning NRS describes trademark counterfeiting as: us[ing] or display[ing] or hav[ing] in [ones s] possession with intent to sell any goods... having affixed thereto any... trademark... lawfully filed for record in the Office of the Secretary of State... or the exclusive right to the use of which is guaranteed... under the laws of the United NV-17

18 E.2.a. STATE TRADEMARK LAW States... without the written authority of the [party having such authority]. a. Registration Requirement Registration and the protection gained thereby are outlined in NRS to , as discussed in Section A above. b. Identity of Type of Goods Nevada Revised Statutes does not identify the type or goods which may be subject to protection from trademark counterfeiting. 3. Who Can Sue NRS and provides the mark owner the authority to file a civil action to sue for injunctive relief and/or damages. 4. Remedies a. Civil Civil remedies are provided by NRS which permits a court of competent jurisdiction to grant injunctions and to award damages to the extent of disgorgement and lost profits, and, if the wrongful acts are deemed to be willful, to treble damages based upon disgorgement and lost profits. NRS (2)(a) to (c). Furthermore, the court may order that any counterfeits or imitations in the possession of defendant be delivered to an officer of the court for destruction, or to complainant. NRS (2)(d). b. Criminal Knowingly using a counterfeit or imitation shall constitute a misdemeanor. NRS In addition, counterfeiting of a trademark, or having in one s possession goods bearing a counterfeit mark with intent to use such counterfeit may constitute a misdemeanor. NRS , (2). Repeated offenses, or offenses involving the sale of at least 100 salable units, or having a total retail value of at least $1,000, shall constitute a felony. NRS (3). 5. Protective Provisions for Defendants There are no special protective provisions for defendants. F. False Advertising 1. Statute False, deceptive, or misleading advertising is defined and governed by NRS to NV-18

19 NEVADA F Prohibited Practices The statute prohibits the publication, dissemination, display or use in any newspaper, magazine, or other publication, by radio, television, or other advertising media or device, public outcry, proclamation, or declaration, solicitation or dissemination by mail, telephone, or doorto-door contacts, of any statement which is known or through exercise of reasonable care should be known to be false, deceptive, or misleading in order to induce a person to purchase, sell, lease, dispose of, utilize or acquire any title or interest in any real or personal property or any personal or professional services or to enter into any obligation or transaction relating thereto, or to include such statements as part of a plan or scheme which intentionally misstates cost or price for the purposes of producing an erroneous belief by any person that the actual cost or price is the same as stated therein. NRS Limitations There are no express limitations. However, an exemption is granted to advertising media including radio or television stations and publishers, printers, distributors of newspapers or magazines, billboard or other advertising media, or their agents where such preparation or dissemination is in good faith without knowledge of the untrue or deceptive or misleading character. NRS Who Can Sue The Attorney General or any district attorney having jurisdiction may file a civil action against any person, firm, corporation, or association or any other organization which violates NRS to NRS Remedies a. Remedies in a civil action may include injunctive relief or penalties not to exceed $2,500 for each violation. NRS , b. First and second offenses may be punishable as misdemeanors. Third and subsequent offenses may be punishable as gross misdemeanors. NRS c. It is not necessary for actual deception to occur. It is sufficient that the accused action has a tendency to deceive or mislead the public. NRS Leading Cases Landex, Inc. v. State ex rel. List, 94 Nev. 469, 582 P.2d 786 (1978). NV-19

20 G. STATE TRADEMARK LAW G. Corporate Name Reservation Prior to Incorporation 1. Statute NRS governs the reservation of a name for a corporation name; NRS governs the reservation of a name for use by a foreign corporation; NRS governs the reservation of a name for a limited liability company. 2. Reservation a. Time Period Names may be reserved for ninety days. NRS , , b. Renewal No provision is made for the renewal of a name reservation. c. Fee The fee for the reservation is $25. The fee for an online name reservation is $75, being $25 for the name reservation and $50 for expedited processing (online reservations are considered expedited filings). NRS , ; page=139. d. Prerequisite to Incorporation Advance name reservation is not required. 3. Conflicting Names Names of corporations, foreign corporations, and limited liability companies, qualified to do business in the State of Nevada, are governed respectively by NRS , NRS , and NRS to No corporation or LLC may register a name which is the same as, or confusingly similar to, that of a corporation or LLC, previously registered or reserved, without the consent of the prior registrant or reserver. NRS (1), (2), (2). In order for a name to be distinguishable from prior-registered names, it must differ by more than distinctive lettering, a distinctive mark, a trademark, a trade name, or any combination thereof. NRS (2), (3), (3). The name of an entity whose existence has terminated due to revocation, merger, or other action is available for use. NRS (3), (4), (4). If the foreign name of a foreign corporation does not qualify for registration in the State of Nevada, that foreign corporation may opt to register, and to do business in this state, under a name other than its foreign name. Such action requires a resolution by the Board of Directors of the foreign corporation. NRS NV-20

21 NEVADA G Restrictions on Use of Corp. and Similar Terms NRS (1) provides that no person may adopt a fictitious name which includes the terms Corporation, Corp., Incorporated, or Inc. in its title unless the person is a corporation organized and qualified to do business pursuant to the laws of the State of Nevada. NRS (2) provides that no person may adopt a fictitious name which includes the terms Limited-Liability Company, Limited Liability Company, Limited Company, L.L.C., L.C., LLC, or LC in its title unless it is a limited liability company organized and qualified to do business pursuant to the laws of the State of Nevada. Further, no county clerk may accept such an application for filing. NRS (8). 5. Required or Authorized Use of Corp or Similar Term A name appearing to be that of a natural person and containing a given name or initials must not be used as a corporate name except with an additional word or words such as Incorporated, Limited, Inc., Ltd., Company, Co., Corporation, Corp., or other word which identifies it as not being a natural person. NRS (1). The name of a limited-liability company formed under the provisions of this chapter must contain the words Limited-Liability Company, Limited Liability Company, Limited Company, or Limited or the abbreviations Ltd., L.L.C., L.C., LLC or LC. The word Company may be abbreviated as Co. NRS (1). 6. Search Provision The Office of the Secretary of State does not conduct searches of names of artificial persons prior to application. Potential registrants may conduct their own searches on-line under the Business Entities Search option of the Secretary of State website at gov/businesssearch. 7. Policy Regarding Identical Words See subsection (3) above. 8. Substantive Rights No substantive trademark or service mark rights arise under state law merely as a result of registration of the name of an artificial person. Such rights do not arise until such name is used as provided under NRS Prohibited Terms Nevada prohibits use of the words Bank, Trust, Engineer, Engineered, Engineering, Professional Engineer, Registered NV-21

22 G.10. STATE TRADEMARK LAW Engineer, Licensed Engineer Accountant, Accounting, Accountancy, Auditor or Auditing, Common-interest Community, Community Association, Master Association, Unit Owners Association, Home Owners Association, Architect, Architecture, Registered Architect, Licensed Architect, Registered Interior Designer, Registered Interior Design, Residential Designer, Registered Residential Designer, Licensed Residential Designer, or Residential Design in a corporate name except in specific circumstances. NRS , , Administrative Agency Secretary of State of Nevada Nevada State Capital Building 101 N. Carson Street Suite 3 Carson City, Nevada Telephone: (775) sosmail@sos.nv.gov web site: Forms Forms are available from the Secretary of State Office, or from the forms page of the Secretary of State website at sos-information/forms-all-divisions. 12. Fees See subsection (2)(c) above. H. Trade Name Registration (Fictitious Name Statutes) 1. Purpose Trade names are registrable under the Model Act in the same manner as trademarks and service marks, NRS , NRS Assumed or fictitious names are registrable for the purpose of identifying the owners of businesses who conduct business under an assumed or fictitious name, NRS to Entities Required to File Any person or entity doing business anywhere within the State of Nevada under a name which is different from the legal name of the person, the entity, or the persons owning an interest in the entity, must file a certificate indicating that they are doing business under a fictitious name, with the County Clerk of each county in which they are doing business. NRS (1). NV-22