S2173-118

1. Short title This Act may be cited as the Trademark Licensing Protection Act of 2023.

2. Safe harbor Section 5 of the Act entitled An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes, approved July 5, 1946 (commonly known as the Trademark Act of 1946) (15 U.S.C. 1055), is amended— in the first sentence, by striking Where a and inserting the following: Where a by adding at the end the following: In this subsection— the term authorizing person means a person that is authorized by the owner of a mark to license that mark for use by a related company; the term communicate, with respect to subparagraph (D)(i)(II), does not include any communication related to a personnel or employment policy or procedure; the term employment relationship means any type of joint employer relationship, single employer relationship, or other employment-related status or relationship; the term exercise control over the mark— includes, but is not limited to, requiring a related company to— complete training conducted for the purpose of preserving or enhancing goodwill, a reputation, uniformity, or the expectation of the public with respect to the nature and quality of goods or services associated with a mark; or communicate with the owner of a mark, or an authorizing person, with respect to preserving or enhancing goodwill, a reputation, uniformity, or the expectation of the public with respect to the nature and quality of goods or services associated with a mark; and does not include any personnel or employment policy or procedure that is communicated— by— the owner of a mark; or an authorizing person; and to— a related company with respect to the mark; or any employee of a related company described in item (aa); the term franchise means a franchise, as defined— in section 436.1(h) of title 16, Code of Federal Regulations, as in effect on the date of enactment of this subsection; or under an applicable State franchise law; the term franchisee means a franchisee, as defined— in section 436.1(i) of title 16, Code of Federal Regulations, as in effect on the date of enactment of this subsection; or under an applicable State franchise law; the term franchisor means a franchisor, as defined— in section 436.1(k) of title 16, Code of Federal Regulations, as in effect on the date of enactment of this subsection; or under an applicable State franchise law; and the term personnel or employment policy or procedure means— any contractually retained right of the owner of a mark, or an authorizing person, to directly control a related company’s hiring, promotion, firing, or discipline of the employees of such related company; any contractually retained right of the owner of a mark, or an authorizing person, to directly control a related company’s rates of pay, including wages and fringe benefits; any contractually retained right of the owner of a mark, or an authorizing person, to directly control a related company’s assignment of employee work schedules; any contractually retained right of the owner of a mark, or an authorizing person, to directly control collective bargaining procedures or labor relations; and any contractually retained right of the owner of a mark, or an authorizing person, to directly supervise the employees of a related company. For the purposes of the National Labor Relations Act (29 U.S.C. 151 et seq.) and the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), none of the following may be construed, alone or in combination with any other factor, as establishing an employment relationship between the owner of a mark that is a franchisor, or an authorizing person that is a franchisor, and a related company with respect to that franchisor, or the employees of that related company: The licensing of the mark for use by that related company or the employees of that related company. Any exercise of control over the mark by that owner or authorizing person, as applicable— with respect to the use of the mark by that related company or the employees of that related company; and for the purpose of preserving or enhancing goodwill, a reputation, uniformity, or the expectation of the public with respect to the nature and quality of goods or services associated with the mark. (a)In generalWhere a; and (b)Consistency in use(1)DefinitionsIn this subsection—(A)the term authorizing person means a person that is authorized by the owner of a mark to license that mark for use by a related company;(B)the term communicate, with respect to subparagraph (D)(i)(II), does not include any communication related to a personnel or employment policy or procedure;(C)the term employment relationship means any type of joint employer relationship, single employer relationship, or other employment-related status or relationship;(D)the term exercise control over the mark—(i)includes, but is not limited to, requiring a related company to—(I)complete training conducted for the purpose of preserving or enhancing goodwill, a reputation, uniformity, or the expectation of the public with respect to the nature and quality of goods or services associated with a mark; or(II)communicate with the owner of a mark, or an authorizing person, with respect to preserving or enhancing goodwill, a reputation, uniformity, or the expectation of the public with respect to the nature and quality of goods or services associated with a mark; and(ii)does not include any personnel or employment policy or procedure that is communicated—(I)by—(aa)the owner of a mark; or(bb)an authorizing person; and(II)to—(aa)a related company with respect to the mark; or(bb)any employee of a related company described in item (aa);(E)the term franchise means a franchise, as defined—(i)in section 436.1(h) of title 16, Code of Federal Regulations, as in effect on the date of enactment of this subsection; or(ii)under an applicable State franchise law;(F)the term franchisee means a franchisee, as defined—(i)in section 436.1(i) of title 16, Code of Federal Regulations, as in effect on the date of enactment of this subsection; or(ii)under an applicable State franchise law;(G)the term franchisor means a franchisor, as defined—(i)in section 436.1(k) of title 16, Code of Federal Regulations, as in effect on the date of enactment of this subsection; or(ii)under an applicable State franchise law; and(H)the term personnel or employment policy or procedure means—(i)any contractually retained right of the owner of a mark, or an authorizing person, to directly control a related company’s hiring, promotion, firing, or discipline of the employees of such related company;(ii)any contractually retained right of the owner of a mark, or an authorizing person, to directly control a related company’s rates of pay, including wages and fringe benefits;(iii)any contractually retained right of the owner of a mark, or an authorizing person, to directly control a related company’s assignment of employee work schedules;(iv)any contractually retained right of the owner of a mark, or an authorizing person, to directly control collective bargaining procedures or labor relations; and(v)any contractually retained right of the owner of a mark, or an authorizing person, to directly supervise the employees of a related company.(2)ApplicabilityFor the purposes of the National Labor Relations Act (29 U.S.C. 151 et seq.) and the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), none of the following may be construed, alone or in combination with any other factor, as establishing an employment relationship between the owner of a mark that is a franchisor, or an authorizing person that is a franchisor, and a related company with respect to that franchisor, or the employees of that related company:(A)The licensing of the mark for use by that related company or the employees of that related company.(B)Any exercise of control over the mark by that owner or authorizing person, as applicable—(i)with respect to the use of the mark by that related company or the employees of that related company; and(ii)for the purpose of preserving or enhancing goodwill, a reputation, uniformity, or the expectation of the public with respect to the nature and quality of goods or services associated with the mark..

3. Applicability This Act, and the amendments made by this Act, shall not apply to any proceeding before the National Labor Relations Board that is commenced before the date of enactment of this Act.