87-101. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-102. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-103. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-104. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-105. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-106. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-107. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-108. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-109. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-110. Repealed. Laws 1967, c. 627, § 17, p. 2099.

87-111. Repealed. Laws 2000, LB 626, § 22.

87-112. Repealed. Laws 2000, LB 626, § 22.

87-113. Repealed. Laws 2000, LB 626, § 22.

87-114. Repealed. Laws 2000, LB 626, § 22.

87-115. Repealed. Laws 2000, LB 626, § 22.

87-116. Repealed. Laws 2000, LB 626, § 22.

87-117. Repealed. Laws 2000, LB 626, § 22.

87-118. Repealed. Laws 2000, LB 626, § 22.

87-119. Repealed. Laws 2000, LB 626, § 22.

87-120. Repealed. Laws 2000, LB 626, § 22.

87-121. Repealed. Laws 2000, LB 626, § 22.

87-122. Repealed. Laws 2000, LB 626, § 22.

87-123. Repealed. Laws 2000, LB 626, § 22.

87-124. Repealed. Laws 2000, LB 626, § 22.

87-125. Repealed. Laws 2000, LB 626, § 22.

87-126. Act, how cited.

Sections 87-126 to 87-144 shall be known and may be cited as the Trademark Registration Act.

Source:Laws 2000, LB 626, § 1.    


87-127. Intent.

It is the intent of the Legislature that the Trademark Registration Act provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the federal Trademark Act of 1946, as amended. To that end, the construction given the federal act should be examined as persuasive authority for interpreting and construing the Trademark Registration Act.

Source:Laws 2000, LB 626, § 2.    


Annotations

87-128. Terms, defined.

For purposes of the Trademark Registration Act:

(1) Abandoned mark means that either of the following has occurred:

(a) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years shall constitute prima facie evidence of abandonment; or

(b) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark;

(2) Applicant means the person filing an application for registration of a mark under the act and the legal representatives, successors, or assigns of such person;

(3) Dilution means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (a) competition between the owner of the famous mark and other parties or (b) likelihood of confusion, mistake, or deception;

(4) Mark includes any trademark or service mark, entitled to registration under the act, whether registered or not;

(5) Person and any other word or term used to designate the applicant or other party entitled to a benefit or privilege or rendered liable under the act includes an individual, a firm, a partnership, a limited liability company, a corporation, a union, an association, or another organization capable of suing and being sued in a court of law;

(6) Registrant means the person to whom the registration of a mark under the act is issued and the legal representatives, successors, or assigns of such person;

(7) Secretary means the Secretary of State or the designee of the secretary charged with the administration of the act;

(8) Service mark means any word, name, symbol, or device or any combination thereof used by a person, to identify and distinguish the services of one person, including a unique service, from the services of others, and to indicate the source of the services, even if that source is unknown. Titles, character names used by a person, and other distinctive features of radio or television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor;

(9) Trade name means any name used by a person to identify a business or vocation of such person;

(10) Trademark means any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the goods of such person, including a unique product, from those manufactured or sold by others, and to indicate the source of the goods, even if that source is unknown; and

(11) Use means the bona fide use of a mark in the ordinary course of trade and not made merely to reserve a right in a mark. A mark shall be deemed to be in use:

(a) On goods when it is placed in any manner on the goods or other containers, associated displays, or tags or labels or, if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale and the goods are sold or transported in commerce in this 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.

Source:Laws 2000, LB 626, § 3.    


Annotations

87-129. Mark; not registered; when.

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;

(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;

(3) Consists of or comprises the flag or coat of arms or other insignia of the United States, of any state or municipality, or of any foreign nation, or any simulation thereof;

(4) Consists of or comprises the name, signature, or portrait identifying a particular living individual, except by the individual's written consent;

(5) Consists of a mark which:

(a) When used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them;

(b) When used on or in connection with the goods or services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them; or

(c) Is primarily merely a surname, except that nothing in subdivision (5) of this section shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant's goods or services. The secretary may accept as evidence that the mark has become distinctive, as used on or in connection with the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this state for the five years before the date on which the claim of distinctiveness is made; or

(6) Consists of or comprises a mark which so resembles a mark registered in this state or a mark previously used by another and not abandoned as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake or to deceive.

Source:Laws 2000, LB 626, § 4.    


87-130. Application for registration; contents.

Subject to the limitations set forth in the Trademark Registration Act, any person who uses a mark may file in the office of the secretary, in a manner complying with the requirements of the secretary, an application for registration of that mark including, but not limited to, the following information:

(1) The name and business address of the person applying for such registration and, if a corporation or other type of business entity except a partnership, the state of incorporation or organization, or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the secretary;

(2) The goods or services on or in connection with which the mark is used and the mode or manner in which the mark is used on or 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 a predecessor in interest; and

(4) A statement that the applicant is the owner of the mark, that the mark is in use, and that, to the knowledge of the person verifying the application, no other person has registered, either federally or in this state, or has the right to use such mark either in the identical form or in such near resemblance as to be likely, when applied to the goods or services of such other person, to cause confusion or mistake or to deceive.

The secretary 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 thereto, including the filing date and serial number of each application, the status of each application, and if any application was finally refused registration or has otherwise not resulted in a registration, the reasons for the refusal or rejection. The secretary may also require that a drawing of the mark, complying with such requirements as the secretary may specify, accompany the application. The application shall be signed and verified, by oath, affirmation, or declaration subject to perjury laws, by the applicant or by a member of the firm or an officer of the corporation or association applying. The application shall be submitted in duplicate and shall be accompanied by three specimens showing the mark as actually used and by the application fee of one hundred dollars payable to the secretary.

Source:Laws 2000, LB 626, § 5;    Laws 2012, LB886, § 1.    


87-131. Application; fee; examination; disclaimer; amendments; reapplication; application priorities.

(1) Upon the filing of an application for registration and payment of the application fee, the secretary may cause the application to be examined for conformity with the Trademark Registration Act.

(2) The applicant shall provide any additional pertinent information requested by the secretary including a description of a design mark and may make, or authorize the secretary to make, such amendments to the application as may be reasonably requested by the secretary or deemed by the applicant to be advisable to respond to any rejection or objection.

(3) The secretary 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 is or becomes distinctive of the applicant's or registrant's goods or services.

(4) Amendments may be made by the secretary upon the application submitted by the applicant upon the applicant's agreement, or a new application may be required to be submitted.

(5) If the applicant is found not to be entitled to registration, the secretary shall advise the applicant thereof and of the reasons therefor. The applicant shall have a reasonable period of time specified by the secretary in which to reply or to amend the application, in which event the application shall then be reexamined. This procedure may be repeated until:

(a) The secretary finally refuses registration of the mark; or

(b) The applicant fails to reply or amend within the specified period, whereupon the application shall be considered abandoned.

(6) If the secretary finally refuses registration of the mark, the applicant may seek a writ of mandamus to compel such registration. Such writ may be granted, but without costs to the secretary, on proof that all the statements in the application are true and that the mark is otherwise entitled to registration.

(7) In the instance of applications concurrently being processed by the secretary seeking registration of the same or confusingly similar marks for the same or related goods or services, the secretary 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 section 87-136.

Source:Laws 2000, LB 626, § 6.    


87-132. Certificate of registration; contents; how treated.

Upon compliance by the applicant with the requirements of the Trademark Registration Act, the secretary shall return the duplicate copy of the application stamped with the filing date to the applicant. The certificate of registration shall be issued under the signature of the secretary and the seal of the state, and it shall show the name and business address and, if a corporation or other type of business entity except a partnership, the state of incorporation or organization, or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the secretary, 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 or in connection with which the mark is used, a reproduction of the mark, the registration date, and the term of the registration. An original, a duplicate original, or a certified copy of an application for trademark which has the file stamp and date of the secretary shall be admissible in evidence as competent and sufficient proof of the registration of such mark in any actions or judicial proceedings in any court of this state. Registration of a mark with the secretary shall be prima facie evidence of the right to use the mark shown in the registration on or in connection with the class or classes of goods or services designated in the registration.

Source:Laws 2000, LB 626, § 7;    Laws 2012, LB886, § 2.    


87-133. Registration; term; renewal; renewal fee; prior registration and proceedings.

(1) A registration of a mark under the Trademark Registration Act is effective for ten years after the date of registration and, upon application filed within six months prior to the expiration, in a manner complying with the requirements of the secretary, the registration may be renewed for a like term from the end of the expiring term. A renewal fee of one hundred dollars, payable to the secretary, shall accompany the application for renewal of the registration. A registration may be renewed for successive periods of ten years in like manner.

(2) Any registration in force under sections 87-111 to 87-125 on July 13, 2000, as such sections existed prior to such date, is effective and shall continue in full force and effect for the unexpired term of such registration. Such registration may be renewed by filing an application for renewal with the secretary complying with the requirements of the secretary and paying the renewal fee within six months prior to the expiration of the registration.

(3) Any suit, proceeding, or appeal pending on July 13, 2000, shall be decided according to sections 87-111 to 87-125 as such sections existed prior to July 13, 2000.

(4) All applications for renewal under the act shall include a verified statement that the mark has been and is still in use and include a specimen showing actual use of the mark on or in connection with the goods or services.

Source:Laws 2000, LB 626, § 8.    


87-134. Registration; assignment; change of name; other recordings.

(1) Any mark and its registration under the Trademark Registration Act is 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 by instruments in writing duly executed and may be recorded with the secretary upon the payment of the recording fee payable to the secretary 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 the Trademark Registration Act is void as against any subsequent purchaser for valuable consideration without notice unless it is recorded with the secretary within three months after the date of the assignment or prior to such subsequent purchase.

(2)(a) 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 or a change of address or state of incorporation or organization may record a certificate of such change with the secretary upon the payment of the recording fee. A registrant or an applicant may be required to submit documented proof of its name change at the discretion of the secretary.

(b) The secretary may issue in the name of the assignee a certificate of registration of an assigned application. The secretary may issue in the name of the assignee a new certificate of registration for the remainder of the term of the registration or last renewal of the registration.

(3) Other instruments which relate to a mark registered or application pending pursuant to the act, such as licenses, security interests, or mortgages, may be recorded in the discretion of the secretary if the instrument is in writing and duly executed.

(4) Acknowledgment shall be prima facie evidence of the execution of an assignment or other instrument and, when recorded by the secretary, the record shall be prima facie evidence of execution.

(5) A photocopy of any instrument referred to in this section shall be accepted for recording if it is certified by any of the parties to the instrument, or their successors, to be a true and correct copy of the original.

(6) In a registration that resulted from an application that was filed before the effective date of a change to the Trademark Registration Act or any rules or regulations adopted and promulgated pursuant to the act, the registrant may be allowed to file an amendment to the registration in order to comply with the current requirements of the act and the rules and regulations. The registrant shall pay a recording fee for such amendment.

Source:Laws 2000, LB 626, § 9;    Laws 2012, LB886, § 3.    


87-135. Public records.

The secretary shall keep for public examination a record of all marks registered or renewed under the Trademark Registration Act, as well as a record of all documents recorded pursuant to section 87-134.

Source:Laws 2000, LB 626, § 10.    


87-136. Cancellation from register.

The secretary shall cancel from the register, in whole or in part:

(1) Any registration concerning which the secretary receives a voluntary request for cancellation thereof from the registrant or the assignee of record;

(2) All registrations granted under the Trademark Registration Act and not renewed in accordance with the act;

(3) Any registration concerning which a court of competent jurisdiction finds that:

(a) The registered mark has been abandoned;

(b) The registrant is not the owner of the mark;

(c) The registration was granted improperly;

(d) The registration was obtained fraudulently;

(e) 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) 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 filing of the application for registration by the registrant under the act, and not abandoned. If the registrant proves that the registrant is the owner of a concurrent registration of a mark in the United States Patent and Trademark Office covering an area including this state, the registration under the act shall not be canceled for such area of the state; or

(4) A court of competent jurisdiction has ordered the cancellation of a registration on any ground.

Source:Laws 2000, LB 626, § 11.    


87-137. Classification of goods and services; rules and regulations.

The secretary shall adopt and promulgate rules and regulations which establish a classification of goods and services for convenience of administration of the Trademark Registration Act, but such rules and regulations shall not 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 indicating the appropriate class or classes of goods or services. When a single application includes goods or services which fall within multiple classes, the secretary may require payment of a fee for each class. To the extent practicable, the classification of goods and services should conform to the classification adopted by the United States Patent and Trademark Office.

Source:Laws 2000, LB 626, § 12.    


87-138. Fraudulent representation; liability.

Any person who for himself or herself, or on behalf of any other person, procures the filing or registration of any mark in the office of the secretary under the Trademark Registration Act by knowingly making any false or fraudulent representation or declaration, orally or in writing, or by any other fraudulent means, is liable for all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party in any court of competent jurisdiction.

Source:Laws 2000, LB 626, § 13.    


87-139. Unauthorized use; liability.

Subject to section 87-143, any person who (1) uses, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under the Trademark Registration Act in connection with the sale, distribution, 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) reproduces, counterfeits, copies, or colorably imitates any such mark and applies such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale or other distribution in this state of such goods or services, is liable in a civil action by the registrant for any and all of the remedies provided in section 87-141, except that under subdivision (2) of this section, the registrant is not entitled to recover profits or damages unless the acts have been committed with the intent to cause confusion or mistake or to deceive.

Source:Laws 2000, LB 626, § 14.    


87-140. Famous mark; factors; remedies.

(1) The owner of a mark which is famous in this state is entitled, subject to the principles of equity and upon such terms as the court seems reasonable, to an injunction against another person's commercial use of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this section. In determining whether a mark is distinctive and famous, a court may consider factors such as, but not limited to:

(a) The degree of inherent or acquired distinctiveness of the mark in this state;

(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 advertising and publicity of the mark in this state;

(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 this state used by the mark's owner and the person against whom the injunction is sought;

(g) The nature and extent of use of the same or similar mark by third parties; and

(h) Whether the mark is the subject of a state registration in this state or a federal registration under the Act of March 3, 1881, or under the Act of February 20, 1905, or on the federal principal register.

(2) In an action brought under this section, the owner of a famous mark is entitled only to injunctive relief in this state, unless the person against whom the injunctive relief is sought willfully intended to trade on the owner's reputation or to cause dilution of the famous mark. If such willful intent is proven, the owner is also entitled to the remedies under the Trademark Registration Act, subject to the discretion of the court and the principles of equity.

(3) The following are not actionable under this section:

(a) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark;

(b) Noncommercial use of the mark; or

(c) All forms of news reporting and news commentary.

Source:Laws 2000, LB 626, § 15.    


87-141. Injunction; damages; attorney's fees.

Any owner of a mark registered under the Trademark Registration Act may enjoin the manufacture, use, display, or sale of any counterfeits or imitations of the mark and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display, or sale as the court determines to be just and reasonable. A defendant may be required to pay to the owner all profits derived from and all damages suffered by reason of the wrongful manufacture, use, display, or sale. The court may also order that any such counterfeits or imitations in the possession or under the control of any defendant be delivered to an officer of the court, or to the complainant, to be destroyed. The court, in its discretion, may enter judgment for an amount not to exceed such profits and damages and reasonable attorney's fees of the prevailing party in such cases where the court finds the other party committed such wrongful acts with knowledge or in bad faith or otherwise as according to the circumstances of the case. The enumeration of any right or remedy under the act does not affect a registrant's right to prosecute under any penal law of this state.

Source:Laws 2000, LB 626, § 16.    


87-142. Cancellation or registration of mark; action; procedure.

(1) Actions to require cancellation of a mark registered pursuant to the Trademark Registration Act or in mandamus to compel registration of a mark pursuant to the act shall be brought in the district court of Lancaster County. In an action in mandamus, the proceeding shall be based solely upon the record before the secretary. In an action for cancellation, the secretary 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 in which it is filed and shall be given the right to intervene in the action.

(2) In any action brought against a nonresident registrant, service may be effected upon the secretary as agent for service of the registrant in accordance with the procedures established for service upon nonresident corporations and business entities under section 25-509.01.

Source:Laws 2000, LB 626, § 17.    


87-143. Common law; construction of act.

Nothing in the Trademark Registration Act shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.

Source:Laws 2000, LB 626, § 18.    


87-144. Fees; not refundable.

Unless specified by the secretary, the fees payable under the Trademark Registration Act are not refundable.

Source:Laws 2000, LB 626, § 19.    


87-201. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-202. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-203. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-204. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-205. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-206. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-207. Repealed. Laws 1967, c. 628, § 14, p. 2104.

87-208. Terms, defined.

As used in sections 87-208 to 87-219.01, unless the context otherwise requires:

(1) Applicant means a person filing an application for registration of a trade name under such sections or his or her legal representatives, successors, or assigns;

(2) Person means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, unincorporated association, or two or more of the foregoing having a joint or common interest or any other legal or commercial entity;

(3) Registrant means a person to whom registration of a trade name under such sections is issued or his or her legal representatives, successors, or assigns; and

(4) Trade name means every name under which any person does or transacts any business in this state other than the true name of such person.

Source:Laws 1967, c. 628, § 1, p. 2099; Laws 1971, LB 486, § 1; Laws 1993, LB 121, § 556; Laws 1997, LB 453, § 6; Laws 2011, LB462, § 8.    


Annotations

87-209. Trade name; not registered; when.

A trade name shall not be registered if it:

(1) Consists of or comprises immoral, deceptive, or scandalous matter;

(2) Consists of or comprises matter which may disparage, bring into contempt or disrepute, or falsely suggest a connection with, persons living or dead, institutions, beliefs, or national symbols;

(3) Consists of, comprises, or simulates the flag or coat of arms or other insignia of the United States, any state or municipality, or any foreign nation;

(4) Consists of or comprises the name, signature, or portrait of any living individual without his or her consent;

(5)(a) Is merely descriptive or misdescriptive, or is primarily geographically descriptive or geographically misdescriptive as applied to the business of the applicant, or (b) is primarily merely a surname, but nothing in this subdivision shall prevent the registration of a trade name which has become distinctive of the applicant's business in this state. The Secretary of State may accept as evidence that a trade name has become distinctive proof of continuous use by the applicant as a trade name in this state or elsewhere for five years preceding the date of the filing of the application for registration;

(6) Consists of or comprises a trade name which so resembles a trade name registered under sections 87-208 to 87-219.01, registered in this state, or the name of a business entity on file or registered with the Secretary of State pursuant to Nebraska law as to be likely to cause confusion, mistake, or deception of purchasers, except that a name, although similar, may be used if the business entity affected consents in writing and such writing is filed with the Secretary of State. The word incorporated, inc., or corporation shall not be a part of the trade name being registered unless the firm is duly incorporated in the State of Nebraska or some other state; or

(7) Consists of the word geologist or any modification or derivative of such word, and the applicant does not meet the requirements of subsection (6) of section 81-3528.

Source:Laws 1967, c. 628, § 2, p. 2100; Laws 1969, c. 856, § 2, p. 3225; Laws 1971, LB 486, § 2; Laws 1997, LB 44, § 12; Laws 1997, LB 453, § 7; Laws 1998, LB 1161, § 91; Laws 2011, LB462, § 9.    


87-210. Trade name; application for registration; requirements; Secretary of State.

(1) Subject to the limitations set forth in sections 87-208 to 87-219.01, any person who adopts a trade name for use in this state may file in the office of the Secretary of State on a form furnished by the Secretary of State an application, in duplicate, for registration of the trade name setting forth, but not limited to, the following information:

(a) The name and street address of the applicant for registration and, if a corporation or other type of business entity, the state of incorporation or organization;

(b) The trade name sought to be registered;

(c) The general nature of the business in fact conducted by the applicant;

(d) The length of time during which the trade name has been used in this state;

(e) The signature of the applicant; and

(f) A filing fee of one hundred dollars.

(2) Upon compliance by the applicant with the requirements of sections 87-208 to 87-219.01, the Secretary of State shall return the duplicate copy stamped with the date of filing to the applicant or the representative submitting the applications for filing.

Source:Laws 1967, c. 628, § 3, p. 2100; Laws 1971, LB 486, § 3; Laws 1975, LB 95, § 9; Laws 1982, LB 928, § 78; Laws 1997, LB 453, § 8; Laws 2005, LB 450, § 1;    Laws 2011, LB462, § 10;    Laws 2012, LB886, § 4.    


87-211. Trade name; registration; term effective; renewal; fee; statement.

(1) Registration of a trade name under sections 87-208 to 87-219.01 shall be effective for a term of ten years from the date of registration and, upon application filed in duplicate 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. A renewal fee of one hundred dollars payable to the Secretary of State shall accompany the application for renewal of the registration.

(2) A trade name registration may be renewed for successive periods of ten years in like manner.

(3) The Secretary of State shall notify registrants of trade names under sections 87-208 to 87-219.01 of the necessity of renewal within the year next preceding the expiration of the ten years from the date of registration or of last renewal by writing to the last-known street address of the registrants.

(4) Any registration in force on August 27, 1971, shall expire ten years from the date of the registration or of the last renewal thereof, whichever is later, and may be renewed by filing an application with the Secretary of State on a form furnished by him or her and paying the renewal fee as provided in this section within six months prior to the expiration of the registration.

(5) All applications for renewals under sections 87-208 to 87-219.01 whether of registrations made under sections 87-208 to 87-219.01 or of registrations effected under any prior act shall include a statement that the trade name is still in use in this state.

(6) A registrant may change its name, street address, and, if the registrant is a corporation or other type of business entity, its state of incorporation or organization by filing a statement of change with the Secretary of State on a form to be furnished by the Secretary of State and paying a fee of ten dollars. A registrant may be required to submit documented proof of its name change at the discretion of the Secretary of State.

Source:Laws 1967, c. 628, § 4, p. 2101; Laws 1971, LB 486, § 4; Laws 1975, LB 95, § 10; Laws 1984, LB 1016, § 1; Laws 1997, LB 453, § 9; Laws 2011, LB462, § 11;    Laws 2012, LB886, § 5.    


87-212. Trade name; assignment; recordation; fee.

Any trade name registered under sections 87-208 to 87-219.01 shall be assignable with the goodwill of the business in which the trade name is used. Assignment shall be by an instrument in writing duly executed, in duplicate, and may be recorded with the Secretary of State upon the payment of a fee of five dollars. The street address, city, and state of the assignee must be included in the assignment. Upon recording of the assignment, the Secretary of State shall return the duplicate copy stamped with the date of filing to the applicant or the representative submitting the applications for filing. An assignment of any registration under sections 87-208 to 87-219.01 shall be void as against any subsequent purchaser for value without notice unless the assignment is recorded with the Secretary of State prior to the subsequent purchase.

Source:Laws 1967, c. 628, § 5, p. 2101; Laws 1969, c. 856, § 3, p. 3226; Laws 1997, LB 453, § 10; Laws 2011, LB462, § 12.    


87-213. Secretary of State; record; public examination.

The Secretary of State shall keep for public examination a record of all trade names registered or renewed under sections 87-208 to 87-219.01.

Source:Laws 1967, c. 628, § 6, p. 2102; Laws 1997, LB 453, § 11; Laws 2011, LB462, § 13.    


87-214. Registration; Secretary of State; cancel; when.

The Secretary of State shall cancel from the register:

(1) Any registration concerning which the Secretary of State shall receive a voluntary request for cancellation from the registrant or the assignee of record;

(2) Any registration granted under sections 87-208 to 87-219.01 and not renewed in accordance with such sections;

(3) Any registration concerning which a court of competent jurisdiction shall find:

(a) That the registered trade name has been abandoned;

(b) That the registrant is not the owner of the trade name;

(c) That the registration was granted improperly; or

(d) That the registration was obtained fraudulently;

(4) Any registration that a court of competent jurisdiction shall order canceled on any ground; and

(5) Any registration where the registrant has failed to publish such trade name within forty-five days from the filing in the office of the Secretary of State and filing proof of publication with the Secretary of State within the forty-five days.

Source:Laws 1967, c. 628, § 7, p. 2102; Laws 1997, LB 453, § 12; Laws 2010, LB690, § 1;    Laws 2011, LB462, § 14;    Laws 2013, LB209, § 1.    


Annotations

87-215. False representation or declaration; damages.

Any person who, for himself or herself or on behalf of any other person, procures the registration of any trade name in the office of the Secretary of State under the provisions of sections 87-208 to 87-219.01, 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 this filing or registration, to be recovered by any party injured in any court of competent jurisdiction.

Source:Laws 1967, c. 628, § 8, p. 2102; Laws 1997, LB 453, § 13; Laws 2011, LB462, § 15.    


87-216. Action for misuse; when.

Subject to section 87-218, any person shall be liable to a civil action by the registrant of the trade name for any or all of the remedies provided in section 87-217 if that person shall:

(1) Use in connection with his or her business, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a trade name registered under sections 87-208 to 87-219.01 in a manner likely to cause confusion, mistake, or deception of purchasers; or

(2) Reproduce, counterfeit, copy, or colorably imitate any registered trade name and apply the reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be in conjunction with another business in this state; except that the registrant shall not be entitled to recover profits or damages unless the acts were committed with knowledge that the imitation was intended to be used to cause confusion, mistake, or deception of purchasers.

Source:Laws 1967, c. 628, § 9, p. 2103; Laws 1997, LB 453, § 14; Laws 2011, LB462, § 16.    


87-217. Injury to business; injunction; remedies; attorney's fees.

Any registrant of a trade name may proceed by suit to enjoin the use, display, or sale of any counterfeits or imitations thereof, and a court of competent jurisdiction may restrain such use, display, or sale on terms which the court deems just and reasonable and may require the defendants to pay to the registrant (1) all profits attributable to the wrongful use, display, or sale, (2) all damages caused by the wrongful use, display, or sale, or (3) both such profits and damages, and reasonable attorney's fees. In lieu of the remedies available in subdivisions (1), (2), and (3) of this section, the court may require the defendants to pay statutory damages of one thousand dollars and reasonable attorney's fees. The court may order that any counterfeits or imitations in the possession or under the control of any defendant be delivered to an officer of the court, or to the complainant, to be destroyed.

Source:Laws 1967, c. 628, § 10, p. 2103; Laws 1997, LB 453, § 15; Laws 2011, LB462, § 17.    


87-218. Trade name; enforcement of rights.

Sections 87-208 to 87-219.01 shall not adversely affect rights in trade names, or the enforcement of rights in trade names, acquired at any time in good faith at common law.

Source:Laws 1967, c. 628, § 11, p. 2104; Laws 1997, LB 453, § 16; Laws 2011, LB462, § 18.    


87-219. Trade name; publication; file; failure; effect.

Every duplicate of the registration of a trade name shall be published by the applicant once in a newspaper of general circulation published in the city or village where the business is to be located, or, if there is no newspaper in the city or village, in some newspaper of general circulation in the county. Proof of such publication shall be filed in the office of the Secretary of State within forty-five days from the date of registration in the office of the Secretary of State. If proof of publication is not filed with the Secretary of State within the forty-five days, the registration shall be canceled by the Secretary of State.

Source:Laws 1967, c. 628, § 13, p. 2104; Laws 2010, LB690, § 2;    Laws 2013, LB209, § 2.    


87-219.01. Trade name; protest registration; procedure.

(1) Within sixty days after the publication of a new registered trade name as provided in section 87-219, a person holding a valid registration of a trade name, corporate name, or limited liability company name may protest the registration of the new trade name. The protest shall be submitted in writing to the Secretary of State. The Secretary of State shall forward a copy of the written complaint to the new registrant who shall have thirty days to respond to the complaint in writing. If, upon review of the complaint and the response to the complaint, the Secretary of State finds that the new registered trade name violates any provision of section 87-209, the Secretary of State shall cancel such trade name. Unless the dispute over the registration of the new trade name is otherwise resolved or settled by the parties, the Secretary of State shall make his or her finding within fifteen days after the response by the new registrant.

(2) The Secretary of State's decision may be appealed to the district court of Lancaster County within thirty days after notice of the decision is received by the appealing party. The appeal shall be commenced by petitioning the district court to compel the Secretary of State to cancel or reinstate such trade name, and attached to the petition shall be copies of the original filing for the trade name, proof of publication, the complaint, the response to the complaint, if any, and the Secretary of State's finding. The district court may summarily order the Secretary of State to cancel or reinstate such trade name or take any other action the district court considers appropriate. The district court's final decision may be appealed as in other civil proceedings.

Source:Laws 1997, LB 453, § 17.


87-220. Repealed. Laws 2011, LB 462, § 20.

87-301. Terms, defined.

For purposes of the Uniform Deceptive Trade Practices Act, unless the context otherwise requires:

(1) Access software provider means a provider of software, including client or server software, or enabling tools that do any one or more of the following: (a) Filter, screen, allow, or disallow content; (b) pick, choose, analyze, or digest content; or (c) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content;

(2) Appropriate inventory repurchase program means a program by which a plan or operation repurchases, upon request and upon commercially reasonable terms, when the salesperson's business relationship with the company ends, current and marketable inventory in the possession of the salesperson that was purchased by the salesperson for resale. Any such plan or operation shall clearly describe the program in its recruiting literature, sales manual, or contract with independent salespersons, including the disclosure of any inventory that is not eligible for repurchase under the program;

(3) Article means a product as distinguished from its trademark, label, or distinctive dress in packaging;

(4) Attorney General means the Attorney General of the State of Nebraska or the county attorney of any county with the consent and advice of the Attorney General;

(5) Cable operator means any person or group of persons (a) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system;

(6) Certification mark means a mark used in connection with the goods or services of a person other than the certifier to indicate geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of the goods or services or to indicate that the work or labor on the goods or services was performed by members of a union or other organization;

(7) Collective mark means a mark used by members of a cooperative, association, or other collective group or organization to identify goods or services and distinguish them from those of others, or to indicate membership in the collective group or organization;

(8) Commercially reasonable terms means the repurchase of current and marketable inventory within twelve months from the date of purchase at not less than ninety percent of the original net cost, less appropriate setoffs and legal claims, if any;

(9) Compensation means a payment of any money, thing of value, or financial benefit;

(10) Consideration means anything of value, including the payment of cash or the purchase of goods, services, or intangible property. The term does not include the purchase of goods or services furnished at cost to be used in making sales and not for resale or time and effort spent in pursuit of sales or recruiting activities;

(11) Covered file-sharing program means a computer program, application, or software that enables the computer on which such program, application, or software is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. Covered file-sharing program does not mean a program, application, or software designed primarily to operate as a server that is accessible over the Internet using the Internet Domain Name System, to transmit or receive email messages, instant messaging, real-time audio or video communications, or real-time voice communications, or to provide network or computer security, network management, hosting and backup services, maintenance, diagnostics, technical support or repair, or to detect or prevent fraudulent activities;

(12) Current and marketable has its plain and ordinary meaning but excludes inventory that is no longer within its commercially reasonable use or shelf-life period, was clearly described to salespersons prior to purchase as seasonal, discontinued, or special promotion products not subject to the plan or operation's inventory repurchase program, or has been used or opened;

(13) Information content provider means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service;

(14) Interactive computer service means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions;

(15) Inventory includes both goods and services, including company-produced promotional materials, sales aids, and sales kits that the plan or operation requires independent salespersons to purchase;

(16) Inventory loading means that the plan or operation requires or encourages its independent salespersons to purchase inventory in an amount which exceeds that which the salesperson can expect to resell for ultimate consumption or to a consumer in a reasonable time period, or both;

(17) Investment means any acquisition, for a consideration other than personal services, of personal property, tangible or intangible, for profit or business purposes, and includes, without limitation, franchises, business opportunities, and services. It does not include real estate, securities registered under the Securities Act of Nebraska, or sales demonstration equipment and materials furnished at cost for use in making sales and not for resale;

(18) Mark means a word, a name, a symbol, a device, or any combination of a word, name, symbol, or device in any form or arrangement;

(19) Person means a natural person, a corporation, a government, a governmental subdivision or agency, a business trust, an estate, a trust, a partnership, a joint venture, a limited liability company, an unincorporated association, a sole proprietorship, or two or more of any of such persons having a joint or common interest or any other legal or commercial entity;

(20) Pyramid promotional scheme means any plan or operation in which a participant gives consideration for the right to receive compensation that is derived primarily from the recruitment of other persons as participants in the plan or operation rather than from the sales of goods, services, or intangible property to participants or by participants to others. A limitation as to the number of persons who may participate, or the presence of additional conditions affecting eligibility, or upon payment of anything of value by a person whereby the person obtains any other property in addition to the right to receive consideration, does not change the identity of the scheme as a pyramid promotional scheme;

(21) Referral or chain referral sales or leases means any sales technique, plan, arrangement, or agreement whereby the seller or lessor gives or offers to give a rebate or discount or otherwise pays or offers to pay value to the buyer or lessee as an inducement for a sale or lease in consideration of the buyer or lessee giving to the seller or lessor the names of prospective buyers or lessees or otherwise aiding the seller or lessor in making a sale or lease to another person if the earning of the rebate, discount, or other value is contingent upon the occurrence of an event subsequent to the time the buyer or lessee agrees to buy or lease;

(22) Service mark means 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;

(23) Substance means any lookalike substance as defined in section 28-401;

(24) Telecommunications service means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used;

(25) Trademark means a word, a name, a symbol, a device, or any combination of a word, name, symbol, or device adopted and used by a person to identify goods made or sold by such person and to distinguish such goods from goods made or sold by others;

(26) Trade name means a word, a name, or any combination of a word or name in any form or arrangement used by a person to identify such person's business, vocation, or occupation and distinguish such business, vocation, or occupation from the business, vocation, or occupation of others; and

(27) Use or promote the use of, for purposes of subdivision (a)(13) of section 87-302, means contrive, prepare, establish, plan, operate, advertise, or otherwise induce or attempt to induce another person to participate in a pyramid promotional scheme, including a pyramid promotional scheme run through the Internet, email, or other electronic communications.

Source:Laws 1969, c. 855, § 1, p. 3221; Laws 1974, LB 327, § 1; Laws 1993, LB 121, § 557; Laws 2002, LB 857, § 6;    Laws 2010, LB801, § 1;    Laws 2016, LB835, § 24;    Laws 2016, LB1009, § 8.    


Cross References

Annotations

87-302. Deceptive trade practices; enumerated.

(a) A person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she:

(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;

(4) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(5) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he or she does not have;

(6) Represents that goods or services do not have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they have or that a person does not have a sponsorship, approval, status, affiliation, or connection that he or she has;

(7) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand, except that sellers may repair damage to and make adjustments on or replace parts of otherwise new goods in an effort to place such goods in compliance with factory specifications;

(8) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(9) Disparages the goods, services, or business of another by false or misleading representation of fact;

(10) Advertises goods or services with intent not to sell them as advertised or advertises the price in any manner calculated or tending to mislead or in any way deceive a person;

(11) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

(12) Makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions;

(13) Uses or promotes the use of or establishes, operates, or participates in a pyramid promotional scheme in connection with the solicitation of such scheme to members of the public. This subdivision shall not be construed to prohibit a plan or operation, or to define a plan or operation as a pyramid promotional scheme, based on the fact that participants in the plan or operation give consideration in return for the right to receive compensation based upon purchases of goods, services, or intangible property by participants for personal use, consumption, or resale so long as the plan or operation does not promote or induce inventory loading and the plan or operation implements an appropriate inventory repurchase program;

(14) With respect to a sale or lease to a natural person of goods or services purchased or leased primarily for personal, family, household, or agricultural purposes, uses or employs any referral or chain referral sales technique, plan, arrangement, or agreement;

(15) Knowingly makes a false or misleading statement in a privacy policy, published on the Internet or otherwise distributed or published, regarding the use of personal information submitted by members of the public;

(16) Uses any scheme or device to defraud by means of:

(i) Obtaining money or property by knowingly false or fraudulent pretenses, representations, or promises; or

(ii) Selling, distributing, supplying, furnishing, or procuring any property for the purpose of furthering such scheme;

(17) Offers an unsolicited check, through the mail or by other means, to promote goods or services if the cashing or depositing of the check obligates the endorser or payee identified on the check to pay for goods or services. This subdivision does not apply to an extension of credit or an offer to lend money;

(18) Mails or causes to be sent an unsolicited billing statement, invoice, or other document that appears to obligate the consumer to make a payment for services or merchandise he or she did not order;

(19)(i) Installs, offers to install, or makes available for installation or download a covered file-sharing program on a computer not owned by such person without providing clear and conspicuous notice to the owner or authorized user of the computer that files on that computer will be made available to the public and without requiring intentional and affirmative activation of the file-sharing function of such covered file-sharing program by the owner or authorized user of the computer; or

(ii) Prevents reasonable efforts to block the installation, execution, or disabling of a covered file-sharing program;

(20) Violates any provision of the Nebraska Foreclosure Protection Act;

(21) In connection with the solicitation of funds or other assets for any charitable purpose, or in connection with any solicitation which represents that funds or assets will be used for any charitable purpose, uses or employs any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or concealment, suppression, or omission of any material fact; or

(22) In the manufacture, production, importation, distribution, promotion, display for sale, offer for sale, attempt to sell, or sale of a substance:

(i) Makes a deceptive or misleading representation or designation, or omits material information, about a substance or fails to identify the contents of the package or the nature of the substance contained inside the package; or

(ii) Causes confusion or misunderstanding as to the effects a substance causes when ingested, injected, inhaled, or otherwise introduced into the human body.

A person shall be deemed to have committed a violation of the Uniform Deceptive Trade Practices Act for each individually packaged product that is either manufactured, produced, imported, distributed, promoted, displayed for sale, offered for sale, attempted to sell, or sold in violation of this section. A violation under this subdivision shall be treated as a separate and distinct violation from any other offense arising out of acts alleged to have been committed while the person was in violation of this section.

(b) In order to prevail in an action under the Uniform Deceptive Trade Practices Act, a complainant need not prove competition between the parties.

(c) This section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this state.

Source:Laws 1969, c. 855, § 2, p. 3222; Laws 1974, LB 327, § 2; Laws 1976, LB 820, § 1; Laws 1979, LB 257, § 1; Laws 1988, LB 180, § 1; Laws 1991, LB 408, § 1; Laws 1993, LB 305, § 32; Laws 2003, LB 118, § 1;    Laws 2008, LB123, § 29;    Laws 2008, LB781, § 1;    Laws 2009, LB155, § 18;    Laws 2010, LB801, § 2;    Laws 2016, LB835, § 25;    Laws 2016, LB1009, § 9.    


Cross References

Annotations

87-303. Deceptive trade practices; damages; injunction; costs; additional remedy.

(a) A person likely to be damaged by a deceptive trade practice of another may bring an action for, and the court may grant, an injunction under the principles of equity against the person committing the deceptive trade practice. The court may order such additional equitable relief as it deems necessary to protect the public from further violations, including temporary and permanent injunctive relief. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.

(b) Costs shall be allowed to the prevailing party unless the court otherwise directs. The court in its discretion may award attorneys' fees to the prevailing party if (1) the party complaining of a deceptive trade practice has brought an action which he or she knew to be groundless or (2) the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.

(c) A claim filed for a violation of the Uniform Deceptive Trade Practices Act shall be proved by a preponderance of the evidence.

(d) The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.

(e) Subdivision (a)(13) of section 87-302 shall not be construed to authorize a civil action against an interactive computer service, provider of telecommunications service, or cable operator for the actions of an information content provider.

Source:Laws 1969, c. 855, § 3, p. 3223; Laws 2010, LB801, § 3;    Laws 2016, LB835, § 26.    


Annotations

87-303.01. Unconscionable act or practice; violation; determination.

(1) An unconscionable act or practice by a supplier in connection with a consumer transaction shall be a violation of the Uniform Deceptive Trade Practices Act.

(2) The unconscionability of an act or practice shall be a question of law for the court. If it is claimed or appears to the court that an act or practice may be unconscionable, the parties shall be given a reasonable opportunity to present evidence as to its setting, purpose, and effect to aid the court in making its determination.

Source:Laws 1974, LB 327, § 3; Laws 2008, LB781, § 2.    


87-303.02. Deceptive trade practice or unconscionable act; Attorney General; powers.

When the Attorney General has cause to believe that any person has engaged in or is engaging in any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01, the Attorney General may:

(a) Require such person to file a statement or report in writing under oath or otherwise, on such forms as shall be prescribed by the Attorney General, as to all facts and circumstances concerning the sale, offer, or advertisement of property by such person, and such other data and information as the Attorney General deems necessary;

(b) Examine under oath any person in connection with the sale or advertisement of any property;

(c) Examine any property or sample thereof, record, book, document, account, or paper as the Attorney General deems necessary; or

(d) Pursuant to an order of any district court, impound any record, book, document, account, paper, or sample of property which is material to such practice and retain the same in his or her possession until the completion of all proceedings undertaken under the Uniform Deceptive Trade Practices Act.

Source:Laws 1974, LB 327, § 4; Laws 2008, LB781, § 3;    Laws 2010, LB801, § 5.    


87-303.03. Attorney General; additional powers.

(1) The Attorney General, in addition to other powers conferred upon him or her by the Uniform Deceptive Trade Practices Act:

(a) May issue subpoenas to require the attendance of witnesses or the production of documents, administer oaths, conduct hearings in aid of any investigation or inquiry, and prescribe such forms and adopt and promulgate such rules as may be necessary to administer the act; and

(b) May issue a cease and desist order, with or without prior hearing, against any person engaged in activities in violation of the act, directing such person to cease and desist from such activity.

(2) Service of any notice or subpoena may be made in the manner prescribed by the rules of civil procedure.

Source:Laws 1974, LB 327, § 5; Laws 2008, LB781, § 4;    Laws 2010, LB801, § 6.    


87-303.04. Attorney General; order; failure or refusal to obey; court; powers.

(1) If any person fails or refuses to obey any order of the Attorney General to file any statement or report, or to obey any subpoena issued by the Attorney General, pursuant to the Uniform Deceptive Trade Practices Act, the Attorney General may apply to any district court in this state for relief until such person obeys such order or subpoena or files such statement or report.

(2) The court, in its order, may:

(a) Grant injunctive relief restraining the sale or advertisement of any property by such person;

(b) Require the attendance of or the production of documents by such person, or both;

(c) Suspend or revoke any license, permit, or certificate issued pursuant to law to any such person, which may be used to further the alleged unlawful practice; or

(d) Grant such other or further relief as may be necessary to obtain compliance by such person.

Source:Laws 1974, LB 327, § 6; Laws 2008, LB781, § 5.    


87-303.05. Attorney General; temporary restraining order; civil action; written assurance of voluntary compliance; deceptive practice; burden of proof.

(1) Whenever the Attorney General has cause to believe that a person has engaged in or is engaging in any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01, the Attorney General may apply for and obtain, in an action in any district court of this state, a temporary restraining order, or injunction, or both, pursuant to the rules of civil procedure, prohibiting such person from continuing such practices, or engaging therein, or doing any act in furtherance thereof. The court may make such orders or judgments as may be necessary to prevent the use or employment by such person of any such deceptive trade practice, or which may be necessary to restore to any other person any money or real or personal property which may have been acquired by means of any such practice.

(2) When the Attorney General has authority to institute a civil action or other proceeding pursuant to the Uniform Deceptive Trade Practices Act, in lieu thereof, the Attorney General may accept an assurance of discontinuance of any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01. Such assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation by the Attorney General and of any amount or amounts necessary to restore to any person any money or real or personal property which may have been acquired by such alleged violator by means of any such practice. Proof by a preponderance of evidence of a violation of such assurance shall constitute prima facie evidence of a deceptive practice as listed in section 87-302 or 87-303.01 in any civil action or proceeding thereafter commenced by the Attorney General.

Source:Laws 1974, LB 327, § 7; Laws 2008, LB781, § 6.    


Annotations

87-303.06. Claims not barred.

The Uniform Deceptive Trade Practices Act shall not bar any claim against any person who has acquired any money or real or personal property by means of any deceptive trade practice or unconscionable act listed in section 87-302 or 87-303.01.

Source:Laws 1974, LB 327, § 8; Laws 2008, LB781, § 7.    


87-303.07. Sale or lease agreement; unenforceable; when.

If a buyer or lessee is induced by a violation of section 87-302 or 87-303.01 to enter into a sale or lease, the agreement is unenforceable by the seller or lessor and the buyer or lessee, at his or her option, may rescind the agreement or retain the merchandise delivered and the benefit of any services performed without any obligation to pay for them.

Source:Laws 1974, LB 327, § 9; Laws 2008, LB781, § 8.    


87-303.08. Violations; penalty.

Any person who violates the Uniform Deceptive Trade Practices Act shall be guilty of a Class II misdemeanor except as otherwise provided in the act.

Source:Laws 1974, LB 327, § 10; Laws 1979, LB 257, § 7; Laws 1988, LB 180, § 2; Laws 1990, LB 656, § 22; Laws 1993, LB 305, § 33.


87-303.09. Injunction, declaratory judgment, written assurance; violation; penalty.

Any person who willfully violates the terms of an injunction or declaratory judgment of the court or the terms of a written assurance of voluntary compliance entered into pursuant to the Uniform Deceptive Trade Practices Act shall be guilty of a Class IV felony.

Source:Laws 1974, LB 327, § 11; Laws 1990, LB 656, § 23.


87-303.10. Civil action; statute of limitations.

A civil action arising under the Uniform Deceptive Trade Practices Act may be brought only within four years from the date of the purchase of goods or services.

Source:Laws 1976, LB 820, § 2; Laws 1990, LB 656, § 24.


87-303.11. Violations; civil penalty; recovery; procedure.

Any person who violates section 87-302 or 87-303.01 or who willfully violates the terms of an injunction or declaratory judgment of a district court or the terms of a written assurance of voluntary compliance entered into pursuant to the Uniform Deceptive Trade Practices Act shall be subject to a civil penalty of not more than two thousand dollars for each violation. The Attorney General, acting in the name of the state, may seek recovery of such civil penalties in a civil action. For purposes of this section, the district court which issues any injunction shall retain jurisdiction and the cause shall be continued while the Attorney General seeks the recovery of such civil penalties.

Source:Laws 1990, LB 656, § 25; Laws 1993, LB 305, § 34.


87-303.12. Copy of pleadings, orders, judgments, and notices; provided to Attorney General; right to intervene.

(1) A party filing a petition, counterclaim, cross-petition, or pleading in intervention alleging a violation under the Uniform Deceptive Trade Practices Act, within seven days following the date of filing such pleading, shall provide a copy to the Attorney General and, within seven days following entry of any final judgment in the action, shall provide a copy of the judgment to the Attorney General. This subsection does not apply to Small Claims Court actions, except as provided in subsection (2) of this section.

(2) A party appealing a Small Claims Court order or judgment to district court involving an issue raised under the act, within seven days of providing notice of the appeal, shall notify the Attorney General in writing and provide a copy of the pleading raising the issue and a copy of the Small Claims Court order or judgment.

(3) A party appealing an order or judgment involving an issue raised under the act, within seven days following the date such notice of appeal is filed with the court, shall notify the Attorney General in writing and provide a copy of the pleading raising the issue and a copy of the court order or judgment being appealed.

(4) Upon timely application to the court in which an action involving an issue raised under the act is pending, the Attorney General may intervene as a party at any time or may be heard at any time. The Attorney General's failure to intervene shall not preclude the Attorney General from bringing a separate enforcement action.

(5) All copies of pleadings, orders, judgments, and notices required by this section to be sent to the Attorney General shall be sent by certified mail unless the Attorney General has previously been provided such copies of the pleadings, orders, judgments, or notices in the same action by certified mail, in which case subsequent mailings may be made by regular mail. Failure to provide the required mailings to the Attorney General shall not be grounds for dismissal of an action under the act, but may be grounds for a subsequent action by the Attorney General to vacate or modify the judgment.

Source:Laws 2010, LB801, § 4.    


87-304. Applicability of act.

(a) The Uniform Deceptive Trade Practices Act does not apply to:

(1) Conduct in compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental agency;

(2) Publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast, or reproduce material without knowledge of its deceptive character; or

(3) Actions or appeals pending (a) on December 25, 1969, under the Uniform Deceptive Trade Practices Act as such act existed immediately prior to March 25, 1974, or (b) under such act as amended and sections 87-303.01 to 87-303.09 on March 25, 1974.

(b) Subdivisions (a)(2) and (a)(3) of section 87-302 do not apply to the use of a service mark, trademark, certification mark, collective mark, trade name, or other trade identification that was used and not abandoned before December 25, 1969, if the use was in good faith and is otherwise lawful except for the Uniform Deceptive Trade Practices Act.

(c) The Uniform Deceptive Trade Practices Act shall apply to deceptive trade practices conducted in whole or in part within the State of Nebraska against residents or nonresidents of this state. The act shall also apply to deceptive trade practices conducted outside of Nebraska against residents of this state if there is a direct connection to any deceptive trade practices conducted in whole or in part within this state.

Source:Laws 1969, c. 855, § 4, p. 3224; Laws 1974, LB 327, § 12; Laws 2008, LB781, § 9.    


87-305. Act, how construed.

The Uniform Deceptive Trade Practices Act shall be construed to effectuate its general purpose to make uniform the law of those states which enact it.

Source:Laws 1969, c. 855, § 5, p. 3224; Laws 1974, LB 327, § 13; Laws 2008, LB781, § 10.    


87-306. Act, how cited.

Sections 87-301 to 87-306 shall be known and may be cited as the Uniform Deceptive Trade Practices Act.

Source:Laws 1969, c. 855, § 6, p. 3224; Laws 1974, LB 327, § 14; Laws 1990, LB 656, § 26; Laws 2010, LB801, § 7.    


87-307. Repealed. Laws 1993, LB 305, § 37.

87-308. Repealed. Laws 1993, LB 305, § 37.

87-309. Repealed. Laws 1993, LB 305, § 37.

87-309.01. Repealed. Laws 1993, LB 305, § 37.

87-310. Repealed. Laws 1993, LB 305, § 37.

87-311. Repealed. Laws 1993, LB 305, § 37.

87-312. Repealed. Laws 1993, LB 305, § 37.

87-401. Legislative intent.

The Legislature finds and declares that distribution and sales through franchise arrangements in the state vitally affect the general economy of the state, the public interest and public welfare. It is therefor necessary in the public interest to define the relationship and responsibilities of franchisors and franchisees in connection with franchise arrangements.

Source:Laws 1978, LB 202, § 1.


Annotations

87-402. Terms, defined.

For purposes of the Franchise Practices Act, unless the context otherwise requires:

(1) Franchise means (a) a written arrangement for a definite or indefinite period, in which a person grants to another person for a franchise fee a license to use a trade name, trademark, service mark, or related characteristics and in which there is a community of interest in the marketing of goods or services at wholesale or retail or by lease, agreement, or otherwise and (b) any arrangement, agreement, or contract, either expressed or implied, for the sale, distribution, or marketing of nonalcoholic beverages at wholesale, retail, or otherwise. Franchise shall not include any arrangement, agreement, or contract, either expressed or implied, for the sale, distribution, or marketing of petroleum products at wholesale, retail, or otherwise;

(2) Person means every natural person, firm, partnership, limited liability company, association, or corporation;

(3) Franchisor means a person who grants a franchise to another person;

(4) Franchisee means a person to whom a franchise is offered or granted;

(5) Franchise fee includes any payment made by the franchisee to the franchisor other than a payment for the purchase of goods or services, for a surety bond, for a surety deposit, or for security for payment of debts due;

(6) Sale, transfer, or assignment means any disposition of a franchise or any interest therein, with or without consideration, which shall include, but not be limited to, bequest, inheritance, gift, exchange, lease, or license;

(7) Place of business means a fixed geographical location at which the franchisee displays for sale and sells the franchisor's goods or offers for sale and sells the franchisor's services. Place of business shall not mean an office, a warehouse, a place of storage, a residence, or a vehicle;

(8) Good cause for terminating, canceling, or failure to renew a franchise is limited to failure by the franchisee to substantially comply with the requirements imposed upon him or her by the franchise; and

(9) Noncompete agreement means any agreement between a franchisor and a franchisee, a guarantor, or any person with a direct or indirect beneficial interest in the franchise that restricts the business activities in which such persons may engage during or after the term of the franchise. Noncompete agreement includes any stand-alone agreement or any covenant not to compete provision within a franchise agreement or ancillary agreement.

Source:Laws 1978, LB 202, § 2; Laws 1989, LB 371, § 24; Laws 1993, LB 121, § 559; Laws 2016, LB942, § 2.    


Annotations

87-403. Franchise; sections, applicable; when.

Sections 87-401 to 87-410 apply only to a franchise (1) the performance of which contemplates or requires the franchisee to establish or maintain a place of business within the State of Nebraska, (2) when gross sales of products or services between the franchisor and franchisee covered by such franchise shall have exceeded thirty-five thousand dollars for the twelve months next preceding the institution of suit pursuant to sections 87-401 to 87-410, and (3) when more than twenty percent of the franchisee's gross sales are intended to be or are derived from such franchise.

Source:Laws 1978, LB 202, § 3.


87-404. Franchise; termination, cancellation, or failure to renew; notice; when; good cause; noncompete agreement; reform; when; franchisor; duties.

(1) It shall be a violation of the Franchise Practices Act for any franchisor directly or indirectly through any officer, agent, or employee to terminate, cancel, or fail to renew a franchise without having first given written notice setting forth all the reasons for such termination, cancellation, or intent not to renew to the franchisee at least sixty days in advance of such termination, cancellation, or failure to renew, except (a) when the alleged grounds are voluntary abandonment by the franchisee of the franchise relationship in which event the written notice may be given fifteen days in advance of such termination, cancellation, or failure to renew; and (b) when the alleged grounds are (i) the conviction of the franchisee in a court of competent jurisdiction of an indictable offense directly related to the business conducted pursuant to the franchise, (ii) insolvency, the institution of bankruptcy or receivership proceedings, (iii) default in payment of an obligation or failure to account for the proceeds of a sale of goods by the franchisee to the franchisor or a subsidiary of the franchisor, (iv) falsification of records or reports required by the franchisor, (v) the existence of an imminent danger to public health or safety, or (vi) loss of the right to occupy the premises from which the franchise is operated by either the franchisee or the franchisor, in which event such termination, cancellation, or failure to renew may be effective immediately upon the delivery and receipt of written notice of the same. It shall be a violation of the Franchise Practices Act for a franchisor to terminate, cancel, or fail to renew a franchise without good cause. This subsection shall not prohibit a franchise from providing that the franchise is not renewable or that the franchise is only renewable if the franchisor or franchisee meets certain reasonable conditions.

(2) If restrictions in a noncompete agreement are found by an arbitrator or a court to be unreasonable in restraining competition, the arbitrator or court shall reform the terms of the noncompete agreement to the extent necessary to cause the restrictions contained therein to be reasonable and enforceable. The arbitrator or court shall then enforce the noncompete agreement against the franchisee, the guarantor, or any person with a direct or indirect beneficial interest in the franchise in accordance with the reformed terms of the noncompete agreement. The arbitrator or court may reform and enforce the restrictions in a noncompete agreement as part of an order for preliminary or temporary relief. This subsection applies to any noncompete agreement entered into before, on, or after April 8, 2016.

(3) If a franchisor is also a seller of a seller-assisted marketing plan as defined in section 59-1705 and has previously filed a disclosure document pursuant to section 59-1724 with the Department of Banking and Finance, and such franchisor subsequently executes a noncompete agreement in a stand-alone or ancillary agreement with a franchisee, a disclosure of such stand-alone or ancillary agreement shall be included with the annual updated disclosure document required to be filed under section 59-1724.

Source:Laws 1978, LB 202, § 4; Laws 2016, LB942, § 3.    


87-405. Franchisee; transfer, assign, or sell franchise or interest therein; notice; contents; franchisor; approval required.

It shall be a violation of sections 87-401 to 87-410 for any franchisee to transfer, assign or sell a franchise or interest therein to another person unless the franchisee shall first notify the franchisor of such intention by written notice by certified mail setting forth in the notice of intent the prospective transferee's name, address, statement of financial qualification and business experience during the previous five years. The franchisor shall within sixty days after receipt of such notice either approve in writing to the franchisee such sale to the proposed transferee, or by written notice advise the franchisee of the unacceptability of the proposed transferee setting forth material reasons relating to the character, financial ability or business experience of the proposed transferee. If the franchisor does not reply within the specified sixty days, his approval is deemed granted. No such transfer, assignment or sale shall be valid unless the transferee agrees in writing to comply with all the requirements of the franchise then in effect.

Source:Laws 1978, LB 202, § 5.


87-406. Prohibited practices; enumerated.

It shall be a violation of sections 87-401 to 87-410 for any franchisor, directly or indirectly, through any officer, agent or employee, to engage in any of the following practices:

(1) To require a franchisee at the time of entering into a franchise arrangement to assent to a release, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by sections 87-401 to 87-410;

(2) To prohibit directly or indirectly the right of free association among franchisees for any lawful purpose;

(3) To require or prohibit any change in management of any franchisee unless such requirement or prohibition of change shall be for good cause, which cause shall be stated in writing by the franchisor;

(4) To restrict the sale of any equity or debenture issue or the transfer of any securities of any franchisee or in any way prevent or attempt to prevent the transfer, sale, or issuance of shares of stock or debentures to employees, personnel of the franchisee, or heirs of the principal owner, as long as basic financial requirements of the franchisor are complied with and any such sale, transfer, or issuance does not have the effect of accomplishing a sale of the franchise;

(5) To impose unreasonable standards of performance upon a franchisee; and

(6) To provide any term or condition in any lease or other agreement ancillary or collateral to a franchise, which term or condition directly or indirectly violates sections 87-401 to 87-410.

Source:Laws 1978, LB 202, § 6.


87-407. Sections; applicability.

Sections 87-401 to 87-410 shall not apply to franchises which are subject to any other statute of this state.

Source:Laws 1978, LB 202, § 7.


87-408. Action by franchisee; defense.

It shall be a defense for a franchisor, to any action brought under sections 87-401 to 87-410 by a franchisee, if it be shown that such franchisee has failed to substantially comply with requirements imposed by the franchise and other agreements ancillary or collateral thereto.

Source:Laws 1978, LB 202, § 8.


87-409. Franchisee; action to recover damages; injunction; costs.

Any franchisee may bring an action against its franchisor for violation of sections 87-401 to 87-410 to recover damages sustained by reason of any violation of sections 87-401 to 87-410 and, when appropriate, shall be entitled to injunctive relief. The prevailing party in any action brought pursuant to this section shall be entitled to the costs of the action including but not limited to reasonable attorney's fees.

Source:Laws 1978, LB 202, § 9.


87-410. Act, how cited.

Sections 87-401 to 87-410 shall be known and may be cited as the Franchise Practices Act.

Source:Laws 1978, LB 202, § 10.


87-411. Motor fuel franchises; death of franchisee; effect.

(1) Any franchise agreement relating to the distribution or retail sale of motor fuels and any agreement for the lease of real or personal property which is part of any such franchise agreement shall terminate upon the death of the franchisee. However, a one-year trial lease and franchise agreement shall be granted by such franchisor to the franchisee's designated and qualified successor in interest if:

(a) The franchisee has provided the franchisor with written notice of the designation of a qualified successor in interest at least six months prior to the death of the franchisee. Such notice shall be on a form prescribed by the franchisor and made available to the franchisee at the franchisee's request; and

(b) The franchisee has been a franchisee of the same franchisor with whom he or she has a valid franchise agreement at the time of his or her death for a period of at least five consecutive years prior to his or her death.

(2) For purposes of sections 87-411 to 87-414, successor in interest shall be restricted to a surviving spouse, adult child, brother, sister, or parent of the franchisee who, at the time of the franchisee's death, meets reasonable qualifications then being required of franchisees by the franchisor.

(3) Unless otherwise specifically provided in this section, actions to be performed by the franchisor or by the successor in interest under sections 87-411 to 87-414 shall be performed within a reasonable time.

Source:Laws 1985, LB 700, § 1; Laws 1994, LB 1160, § 123; Laws 1995, LB 182, § 67.


87-412. Designation of successor in interest; rights; notice of election to operate franchise.

A franchisee may designate one primary and one alternate successor in interest. The alternate, if one is designated, shall have no rights under sections 87-411 to 87-414 if the primary successor in interest exercises his or her rights under sections 87-411 to 87-414. If an alternate desires to assume and operate the franchise in the event the primary successor in interest fails to do so, the alternate shall give notice of such election within forty-five days after the death of the franchisee and shall comply with sections 87-411 to 87-414.

Source:Laws 1985, LB 700, § 2.


87-413. Successor in interest; trial lease and franchise agreement; procedure.

(1) Upon meeting the reasonable qualifications referred to in section 87-411, the successor in interest shall be entitled to enter into a one-year trial lease and franchise agreement with the franchisor as provided by the Petroleum Marketing Practices Act, 15 U.S.C. 2801.

(2) The primary successor in interest shall have twenty-one days after the death of the franchisee to give written notice of an election to enter into the trial lease and franchise. The notification shall contain such information regarding business experience and credit worthiness as is reasonably required by the franchisor.

(3) If the successor in interest assumes the franchise, the successor in interest shall account to the heirs or estate of the deceased franchisee for the value of personal property of the franchisee located at or related to the franchise.

Source:Laws 1985, LB 700, § 3.


87-414. Applicability of sections.

Sections 87-411 to 87-414 shall apply to franchise agreements existing on and those executed or renewed on or after September 6, 1985.

Source:Laws 1985, LB 700, § 4.


87-501. Act, how cited.

Sections 87-501 to 87-507 shall be known and may be cited as the Trade Secrets Act.

Source:Laws 1988, LB 337A, § 1.


87-502. Terms, defined.

As used in the Trade Secrets Act, unless the context otherwise requires:

(1) Improper means shall mean theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means;

(2) Misappropriation shall mean:

(a) Acquisition of a trade secret of another by a 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 another without express or implied consent by a person who:

(i) Used improper means to acquire knowledge of the trade secret;

(ii) At the time of the disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:

(A) Derived from or through a person who had utilized improper means to acquire it;

(B) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(C) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(iii) Before a material change of his or her position, knew or had reason to know that the information was a trade secret and that knowledge of it had been acquired by accident or mistake;

(3) Person shall mean a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity; and

(4) Trade secret shall mean information, including, but not limited to, a drawing, formula, pattern, compilation, program, device, method, technique, code, or process that:

(a) Derives independent economic value, actual or potential, from not being known to, and not being 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.

Source:Laws 1988, LB 337A, § 2; Laws 1993, LB 121, § 560.


Annotations

87-503. Misappropriation; injunction; royalty; affirmative acts.

(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 shall include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or having reason to know of the misappropriation that renders a prohibitive injunction inequitable.

(3) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.

Source:Laws 1988, LB 337A, § 3.


87-504. Misappropriation; damages.

Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or having reason to know of the misappropriation renders a monetary recovery inequitable, a complainant shall be entitled to recover damages for misappropriation. Damages may 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.

Source:Laws 1988, LB 337A, § 4.


87-505. Court proceedings; preserve secrecy.

In an action under the Trade Secrets Act, the court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include, but not be limited to, granting protective orders in connection with discovery proceedings and ordering nondisclosure of the alleged trade secret by the parties' attorneys, witnesses, or experts. The disclosure or publication of a trade secret in a court proceeding or as a result thereof shall not constitute an abandonment of the secret.

Source:Laws 1988, LB 337A, § 5.


87-506. Statute of limitation.

An action for misappropriation shall be brought within four years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For purposes of this section, a continuing misappropriation shall constitute a single claim.

Source:Laws 1988, LB 337A, § 6.


87-507. Applicability of act.

The Trade Secrets Act shall not apply to any misappropriation occurring prior to July 9, 1988. With respect to a continuing misappropriation that began prior to July 9, 1988, such act also shall not apply to the continuing misappropriation that occurs after such date.

Source:Laws 1988, LB 337A, § 7.


Annotations

87-601. Act, how cited.

Sections 87-601 to 87-610 shall be known and may be cited as the Invention Development Services Disclosure Act.

Source:Laws 1991, LB 96, § 1.


87-602. Terms, defined.

For purposes of the Invention Development Services Disclosure Act:

(1) Contract for invention development services shall mean a contract by which an invention developer undertakes invention development services for a customer;

(2) Customer shall mean any person, firm, partnership, limited liability company, corporation, or other entity that enters into a contract for invention development services, except any firm, limited liability company, corporation, or other entity, other than a natural person, purchasing invention development services as an adjunct to the traditional commercial enterprises in which it engages as a livelihood;

(3) Invention shall mean a discovery, process, machine, design, formulation, product, concept, or idea, or any combination thereof, whether patentable or not;

(4) Invention developer shall mean any person, firm, partnership, limited liability company, or corporation and any agent, employee, officer, partner, member, or independent contractor thereof who offers to perform or performs for a customer any invention development services. Invention developer shall not include:

(a) Any department or agency of the federal, state, or local government;

(b) Any nonprofit, charitable, scientific, or educational organization described in section 170(b)(1)(A) of the Internal Revenue Code;

(c) Any attorney acting within the scope of the attorney's professional license;

(d) Any person duly registered before the United States Patent and Trademark Office acting within the scope of that person's professional license; or

(e) Any person, firm, limited liability company, corporation, association, or other entity that does not charge a fee for invention development services other than any payment made from a portion of the income received by a customer by virtue of such acts performed by such entity. For purposes of this subdivision, fee shall include any payment made by the customer to such entity including reimbursement for expenditures made or costs incurred by such entity; and

(5) Invention development services shall mean any act involved in the evaluation of an invention for commercial potential and the marketing, brokering, or promoting of such an invention done by or for an invention developer for the purpose of procuring a licensee or buyer for an intellectual property right in the invention.

Source:Laws 1991, LB 96, § 2; Laws 1993, LB 121, § 561; Laws 1995, LB 574, § 92.


87-603. Contract for invention development services; requirements; option to terminate.

(1) Every contract for invention development services shall be in writing and shall be subject to the Invention Development Services Disclosure Act. A copy of the written contract shall be given to the customer at the time he or she signs the contract.

(2) If it is the invention developer's normal practice to seek more than one contract in connection with an invention or if the invention developer normally seeks to perform services in connection with an invention in more than one phase with the performance of each phase covered in one or more subsequent contracts, the invention developer shall so state in writing at the time the customer signs the first contract and shall supply to the customer such writing together with a written summary of the developer's normal terms, if any, of such subsequent contracts, including the approximate amount of the developer's normal fees or other consideration, if any, that may be required from the customer.

(3) Notwithstanding any contractual provision to the contrary, no payment for invention development services shall be required, made, or received until three business days after the date on which the customer receives a copy of the contract for invention development services signed by the invention developer and the customer. Delivery of a promissory note, check, bill of exchange, or negotiable instrument of any kind to the invention developer or to a third party for the benefit of the invention developer, irrespective of the date or dates appearing in such instrument, shall be deemed payment for the purpose of this section.

(4) The parties to a contract for invention development services shall have the option to terminate the contract until payment is made. The customer may exercise the option by refraining from making payment to the invention developer. The invention developer may exercise the option to terminate by giving to the customer a written notice of its exercise of the option, which written notice shall become effective upon receipt by the customer.

Source:Laws 1991, LB 96, § 3.


87-604. Contract for invention development services; cover sheet; contents; invention developer; duties.

(1) Every contract for invention development services shall have a conspicuous and legible cover sheet attached with the following notice printed thereon in boldface of at least ten-point type:

THIS CONTRACT BETWEEN YOU AND AN INVENTION DEVELOPER IS REGULATED BY THE INVENTION DEVELOPMENT SERVICES DISCLOSURE ACT. YOU ARE NOT PERMITTED OR REQUIRED TO MAKE ANY PAYMENTS UNDER THIS CONTRACT UNTIL THREE BUSINESS DAYS AFTER YOU SIGN THIS CONTRACT AND RECEIVE A COMPLETED COPY OF IT.

IF YOU ASSIGN EVEN A PARTIAL INTEREST IN THE IDEA OR INVENTION TO THE INVENTION DEVELOPER, THE INVENTION DEVELOPER MAY HAVE THE RIGHT TO SELL OR DISPOSE OF THE IDEA OR INVENTION WITHOUT YOUR CONSENT AND MAY NOT HAVE TO SHARE THE PROFITS WITH YOU.

THE TOTAL NUMBER OF CUSTOMERS WHO HAVE CONTRACTED WITH THE INVENTION DEVELOPER SINCE ..(date).. IS ............. . THE TOTAL NUMBER OF CUSTOMERS KNOWN BY THIS INVENTION DEVELOPER TO HAVE RECEIVED, BY VIRTUE OF THIS INVENTION DEVELOPER'S PERFORMANCE, AN AMOUNT OF MONEY IN EXCESS OF THE AMOUNT PAID BY THE CUSTOMER TO THIS INVENTION DEVELOPER IS .............. .

THIS CONTRACT DOES NOT PROVIDE ANY PATENT, COPYRIGHT, OR TRADEMARK PROTECTION FOR YOUR IDEA OR INVENTION. YOU ARE ENCOURAGED TO CONSULT WITH A QUALIFIED ATTORNEY BEFORE SIGNING THIS CONTRACT. BY PROCEEDING WITHOUT THE ADVICE OF A QUALIFIED ATTORNEY, YOU COULD LOSE ANY RIGHTS YOU MIGHT HAVE IN YOUR IDEA OR INVENTION.

(2) The invention developer shall complete the cover sheet with the proper information to be provided in the blanks. The invention developer shall insert in the first blank the date the invention developer began business or September 6, 1991, whichever is later. The numbers to be inserted in the last two blanks may be rounded to the nearest one hundred and do not need to include those who have contracted within the three immediately preceding calendar months or parts thereof. If the number to be inserted in the third blank is zero, it shall be so stated.

(3) The cover sheet shall only contain the information required by this section and the name, primary office address, and local office address of the invention developer.

Source:Laws 1991, LB 96, § 4.


87-605. Contract for invention development services; written report; contents.

With respect to every contract for invention development services, the invention developer shall deliver to the customer at the address specified in the contract, at least at quarterly intervals throughout the term of the contract, a written report which identifies the contract and which includes:

(1) A full, clear, and concise description of the services performed up to the date of the report and of the services yet to be performed; and

(2) The name and address of each and every person, firm, or corporation to whom the subject matter of the contract has been disclosed, the reason for each and every disclosure, the nature of the disclosure, and copies of all responses received as a result of those disclosures.

Source:Laws 1991, LB 96, § 5.


87-606. Contract for invention development services; contents.

Every contract for invention development services shall set forth in boldface of at least ten-point type the following:

(1) The terms and conditions of payment and contract termination rights required by section 87-603;

(2) A full, clear, and concise description of the specific acts or services that the invention developer undertakes to perform for the customer. To the extent that the description of the specific acts or services affords discretion in the invention developer as to what specific acts or services will be performed, the invention developer shall be deemed a fiduciary;

(3) A statement as to whether the invention developer undertakes to construct, sell, or distribute one or more prototypes, models, or devices embodying the customer's invention;

(4) The name and principal place of business of the invention developer and the name and principal place of business of any parent, subsidiary, or affiliated company that may engage in performing any of the invention development services;

(5) If any oral or written representation of estimated or projected customer earnings is given by the invention developer, a statement of that estimation or projection and a description of the data upon which it is based;

(6) The name and address of the custodian of all records and correspondence pertaining to the invention development services and a statement that the invention developer is required to maintain all records and correspondence relating to performance of the invention development services for that customer for a period of not less than two years after expiration of the term of the contract for invention development services, which records and correspondence shall be made available to the customer or his or her representative for review and copying at the customer's reasonable expense on the invention developer's premises during normal business hours upon seven days' written notice; and

(7) A statement setting forth a time schedule for performance of the invention development services, including an estimated date by which performance of the invention development services is expected to be completed.

Source:Laws 1991, LB 96, § 6.


87-607. Contract for invention development services; voidable; when; civil action authorized; additional amount distributed to common schools; when; rebuttable presumption.

(1) Any contract for invention development services which does not substantially comply with the Invention Development Services Disclosure Act shall be voidable at the option of the customer. Any contract for invention development services entered into in reliance upon any false, fraudulent, or misleading information, representation, notice, or advertisement of the invention developer shall be voidable at the option of the customer. Any waiver by the customer of any of the provisions of the act shall be deemed contrary to public policy and shall be void and unenforceable.

(2) Any customer who has been injured by a violation of the act by an invention developer, by any false or fraudulent statement, representation, or omission of material fact by an invention developer, or by failure of an invention developer to make all the disclosures required by the act may recover in a civil action against the invention developer, in addition to reasonable costs and attorney's fees, the amount of actual damages sustained by the customer.

(3) If a customer establishes a claim and secures judgment on such claim under subsection (2) of this section, an amount up to two times the judgment may be recovered from the invention developer, if ordered by the court. Any amount recovered pursuant to this subsection shall be placed in a fund to be distributed to the common schools of this state.

(4) A substantial violation of any provision of the act by an invention developer or the execution by the customer of a contract for invention development services in reliance on any such false or fraudulent statements, representations, or material omissions shall establish a rebuttable presumption of injury.

Source:Laws 1991, LB 96, § 7.


87-608. Attorney General; enforcement duties; civil penalty.

(1) For purposes of enforcing the Invention Development Services Disclosure Act, the Attorney General may conduct investigations, hold hearings, and compel the attendance of witnesses and the production of accounts, books, and documents by the issuance of subpoenas.

(2) The Attorney General shall enforce the act and may recover a civil penalty not to exceed three thousand dollars for each violation of the act and seek equitable relief to restrain any violation.

Source:Laws 1991, LB 96, § 8.


87-609. Invention developer; bond; filings required; fees.

(1) Every invention developer rendering or offering to render invention development services in this state shall maintain a bond issued by a surety company holding a certificate of authority to transact business in this state, the principal sum of which shall not be less than twenty-five thousand dollars in the first or any subsequent year of operation. The invention developer shall file a copy of the bond with the Secretary of State prior to the time the invention developer first commences business in this state or within ninety days after September 6, 1991, whichever is later, and shall pay an initial filing fee of one hundred dollars. The invention developer shall file an annual statement that the bond is current and shall pay a filing fee of twenty-five dollars on or before July 1 of each year after the initial filing.

(2) The bond shall be in favor of the State of Nebraska for the benefit of any person who, after entering into a contract for invention development services with an invention developer, is injured by fraud, dishonesty, or failure to provide the services of the invention developer in performance of the contract. Any person claiming against the bond may maintain an action at law against the invention developer and the surety. The aggregate liability of the surety to all persons for all breaches of conditions of the bond shall not exceed the amount of the bond.

Source:Laws 1991, LB 96, § 9.


87-610. Remedies; not exclusive.

Nothing in the Invention Development Services Disclosure Act shall limit any obligations, rights, or remedies that might otherwise be applicable or available under the law of this state.

Source:Laws 1991, LB 96, § 10.


87-701. Act, how cited.

Sections 87-701 to 87-711 shall be known and may be cited as the Equipment Business Regulation Act.

Source:Laws 1991, LB 123, § 1.


87-702. Legislative findings.

The Legislature finds that the retail distribution and sales of agricultural and industrial equipment utilizing independent retail businesses operating under agreements with manufacturers, wholesalers, and distributors of such equipment vitally affect the general economy, public interests, and public welfare of the state and that it is necessary to regulate the business relationships between the independent dealers and the equipment manufacturers, wholesalers, and distributors.

Source:Laws 1991, LB 123, § 2.


87-703. Terms, defined.

For purposes of the Equipment Business Regulation Act:

(1) Continuing commercial relationship shall mean a relationship in which a dealer has been granted the right to sell and service equipment manufactured by a supplier;

(2) Controlling interest shall mean a combination of ownership or management interests which legally or in practical effect has the power to determine the policies under which a dealership is operated;

(3) Dealer or dealership shall mean an individual, partnership, limited liability company, corporation, association, or other form of business enterprise primarily engaged in the retail sale and service of equipment in this state pursuant to any oral or written agreement for a definite or indefinite period of time in which there is a continuing commercial relationship in the marketing of equipment and related services;

(4) Dealer agreement shall mean a contract or agreement, whether oral or written, between a supplier and dealer by which the dealer is granted the right to sell, distribute, and service the supplier's equipment and by which there is a continuing commercial relationship between the supplier and the dealer;

(5) Equipment shall mean any machine designed for or adapted and used for agricultural, horticultural, livestock, grazing, forestry, or industrial purposes; and

(6) Supplier shall mean the manufacturer, wholesaler, or distributor of the equipment to be sold by a dealer.

Source:Laws 1991, LB 123, § 3; Laws 1993, LB 121, § 562.


Annotations

87-704. Prohibited acts.

It shall be a violation of the Equipment Business Regulation Act for a supplier:

(1) To require a dealer to accept delivery of equipment, repair parts, or attachments that the dealer has not voluntarily ordered;

(2) To require a dealer to order or accept delivery of equipment with special features or attachments not included in the base list price of such equipment as publicly advertised by the supplier;

(3) To require a dealer to enter into any agreement, whether written or oral, amendatory or supplementary to an existing dealer agreement with the supplier unless such amendatory or supplementary agreement is imposed on similarly situated dealers;

(4) To take action terminating, canceling, failing to renew, or substantially changing the competitive circumstances intended by the dealer agreement due to the results of conditions beyond the dealer's control, including drought, flood, labor disputes, or economic recession. This subdivision shall not apply if the dealer is in default of a security agreement in effect with the supplier; and

(5) To condition the renewal or extension of a dealer agreement on (a) the dealer's substantial renovation of its place of business or the construction, purchase, acquisition, or rental of a new place of business by the dealer unless the supplier advises the dealer in writing of its demand for such renovation, construction, purchase, acquisition, or rental within a reasonable time prior to the effective date of the proposed renewal or extension, but in no case less than one year prior to such date, or (b) capital construction exceeding the terms of the dealer agreement in force and effect on May 2, 1991.

Source:Laws 1991, LB 123, § 4.


87-705. Dealer agreement; terminate, cancel, or not renew; notice; sale or transfer; duties of supplier.

(1) A supplier shall be deemed to have good cause to terminate, cancel, or not renew a dealer agreement when a dealer:

(a) Has transferred a controlling interest in the dealership without the supplier's consent;

(b) Has made a material misrepresentation to the supplier;

(c) Has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against it which has not been discharged within sixty days after the filing, is in default under a security agreement in effect with the supplier, or is insolvent or in receivership;

(d) Has been convicted of a crime punishable by a term of imprisonment for one year or more;

(e) Has failed to operate in the normal course of business for seven consecutive business days or has terminated business;

(f) Has relocated its place of business without the supplier's consent;

(g) Has consistently engaged in business practices which are detrimental to the consumer or supplier by way of excessive pricing, misleading advertising, or failure to provide service and replacement parts or perform warranty obligations;

(h) Has inadequately represented the supplier over a measured period causing lack of performance in sales or service or warranty areas and has failed to achieve market penetration at levels consistent with similarly situated dealerships based on available record information;

(i) Has consistently failed to meet building and housekeeping requirements or has failed to provide adequate sales, service, or parts personnel commensurate with the dealer agreement;

(j) Has consistently failed to comply with the applicable licensing laws pertaining to the products and services being represented for the supplier and on the supplier's behalf; or

(k) Has consistently failed to substantially comply with essential and reasonable requirements imposed by the dealer agreement, but only if that requirement is also generally imposed upon similarly situated dealers in Nebraska.

(2) Except when good cause exists as provided in subdivisions (1)(a) through (f) of this section, a supplier shall give a dealer ninety days' written notice of the supplier's intent to terminate, cancel, or not renew a dealer agreement. The notice shall state all reasons constituting good cause for termination, cancellation, or nonrenewal and shall provide that the dealer has sixty days from receipt of the notice in which to cure any claimed deficiency, except that the dealer shall have one year from receipt of the notice to cure a deficiency described in subdivision (1)(h) of this section.

(3) If a supplier has contractual authority to approve or deny a request for a sale or transfer of a dealership or an equity ownership interest in a dealership, the supplier shall not unreasonably deny such request. The dealer's request shall be sent by certified mail and shall include reasonable financial information, personal background information, character references, and work histories for each acquiring person. The approval or denial of a request made pursuant to this subsection shall be made in writing and sent by certified mail within sixty days after receipt of the request. If the supplier has not approved or denied the request within the sixty-day period, the request is deemed approved. If a supplier denies a request made pursuant to this subsection, the supplier shall provide the dealer with a written notice of such denial that states the reasons for denial.

Source:Laws 1991, LB 123, § 5; Laws 2005, LB 118, § 1.    


87-706. Repair parts; returns; duties of supplier.

(1) A supplier shall provide for the availability of repair parts throughout the reasonable useful life of any equipment sold.

(2) A supplier shall at least annually provide dealers an opportunity to return surplus repair parts for credit without restrictions as follows:

(a)(i) The supplier may notify the dealers of a surplus parts return program for a time period of at least sixty days in duration during which dealers may submit a list of their surplus parts and return the parts to the supplier; or

(ii) If twelve months have elapsed and the supplier has not notified a dealer of a surplus parts return program, the dealer may submit to the supplier a request to return surplus parts and the supplier shall allow the dealer to return the parts within thirty days after receipt of the request;

(b) Subject to the other provisions of this section, a supplier shall allow a dealer to return parts with a dollar value equal to at least six percent of the total dollar value of parts purchased by the dealer from the supplier or the supplier's predecessor in interest during the twelve-month period immediately preceding either the notification to the dealer of the supplier's surplus parts return program or the month the dealer's return request is made, whichever is applicable. A dealer may elect to return a dollar value of parts equal to less than six percent of such total dollar value of parts purchased;

(c) An obsolete or superseded part may not be returned, except that any part listed in the supplier's current list of returnable parts and any superseded part that has not been the subject of a surplus parts return program as of the date of notification to the dealer by the supplier of the current surplus parts return program or the date of the dealer's request to return surplus parts, whichever is applicable, shall be eligible for return;

(d) To be eligible for return, parts must be in new and unused condition and must have been purchased by the dealer from the supplier to whom they are returned or the supplier's predecessor in interest;

(e) The supplier shall allow credit for a returned part of at least eighty-five percent of the current price of the part as listed in the supplier's effective price list or catalog at the date of the notification to the dealer by the supplier of the surplus parts return program or the date of the dealer's request to return surplus parts, whichever is applicable, or, if there is no effective price list or catalog, in the supplier's invoices;

(f) The supplier shall issue credit to the dealer within ninety days after receipt of the parts returned by the dealer;

(g) The dealer shall be presumed to have purchased the returned parts from the supplier or the supplier's predecessor in interest, and the burden shall be on the supplier to prove otherwise;

(h) The provisions of this section shall be supplemental to any agreement between the dealer and the supplier covering the return of parts which provides the dealer with greater protection;

(i) Nothing in this section shall be construed to affect the existence or enforcement of a security interest which any person may have in the parts of the dealer; and

(j) Nothing in this section shall preclude a credit for returned parts which is greater than the total amount authorized by this section.

(3) The annual parts return provided for in subsection (2) of this section may be waived by a dealer. If a majority of dealers from a single supplier choose to waive the provisions of such subsection, the supplier shall be exempt from such subsection.

Source:Laws 1991, LB 123, § 6.


87-707. Termination of dealer agreement; supplier and dealer; rights and duties; liability.

(1) Whenever any dealer enters into a dealer agreement with a supplier in which the dealer agrees to maintain an inventory of equipment, attachments, or repair parts and the dealer agreement is subsequently terminated, the supplier shall:

(a) Repurchase the inventory by:

(i) Paying one hundred percent of the net cost of all new, undamaged, and complete equipment which was purchased from the supplier no more than twenty-four months prior to the date of termination and which is resalable;

(ii) Paying eighty-five percent of the current price of all new, unused, and undamaged attachments and repair parts, including superseded repair parts, which are listed in the price lists or catalogs in use by the supplier on the date of termination; and

(iii) Either (A) paying five percent of the current price on all new, unused, and undamaged attachments and repair parts returned to cover the cost of handling, packing, and loading the attachments and repair parts or (B) performing the handling, packing, and loading; and

(b) Repurchase at fair market value specialized repair tools purchased by the dealer pursuant to requirements of the supplier from the supplier or an approved vendor of the supplier within three years prior to the date of termination and held by the dealer on the date of termination.

(2) For purposes of this section:

(a) Current price shall mean the price for the attachments, repair parts, or tools listed in the supplier's effective price list or catalog or, if there is no effective price list or catalog, in the supplier's invoices; and

(b) Net cost shall mean the price the dealer paid to the supplier for the equipment less all discounts previously allowed by the supplier to the dealer.

(3) Upon payment of the repurchase amount to the dealer, the title and right to possession of the inventory or tools shall transfer to the supplier. Notwithstanding the requirements of article 9, Uniform Commercial Code, on filing notice of a security interest, the dealer shall have a continuing security interest in the inventory or tools until payment by the supplier and shall be treated the same as if the dealer still had possession of the inventory or tools.

(4) This section shall not require the supplier to repurchase from the dealer:

(a) Any repair part or attachment which has a limited storage life or is otherwise subject to deterioration;

(b) Any repair part or attachment which is priced as a set of two or more items if the set is incomplete;

(c) Any repair part or attachment which because of its condition is not resalable as a new part or attachment without repairing or reconditioning;

(d) Any repair part or attachment which is not in new, unused, and undamaged condition;

(e) Any equipment which is not in new, unused, undamaged, and complete condition;

(f) Any inventory for which the dealer is unable to furnish evidence, reasonably satisfactory to the supplier, of good title free and clear of all claims, liens, and encumbrances;

(g) Any inventory which was ordered by the dealer on or after the date of receipt of the notification of termination of the dealer agreement; or

(h) Any inventory which was acquired by the dealer from any source other than the supplier or the supplier's predecessor in interest.

(5) If any supplier fails or refuses to repurchase any inventory or specialized repair tools subject to this section within ninety days after the date the supplier takes possession, the supplier shall be civilly liable for (a) one hundred percent of the net cost of the equipment and of the current price of the attachments, repair parts, and tools, (b) any freight charges paid by the dealer, and (c) all costs of financing such repurchase, including court costs and reasonable attorney's fees.

(6) Nothing in this section shall be construed to affect the existence or enforcement of a security interest which any person may have in the inventory or tools of the dealer.

Source:Laws 1991, LB 123, § 7; Laws 1999, LB 550, § 50.    


87-708. Death or incapacity of dealer; heirs or personal representative; rights and remedies.

(1) In the event of the death or incapacity of a dealer or the majority stockholder of a corporation operating as a dealer, the supplier shall, at the option of the heirs at law if the dealer or majority stockholder died intestate or the personal representative under the terms of the deceased dealer's or majority stockholder's last will and testament if the dealer or majority stockholder died testate, repurchase the inventory and specialized repair tools from the estate as provided in section 87-707 as if the supplier had terminated the dealer agreement. The heirs or personal representative shall have twelve months from the date of the death of the dealer or majority stockholder to exercise the option. Nothing in this section shall require the repurchase if the heirs or personal representative and the supplier enter into a new dealer agreement. Nothing in this section shall prevent the application of any provisions of the dealer agreement pertaining to death of the dealer or succession to the extent such provisions are not inconsistent with this section. Nothing in this section shall entitle an heir, devisee, or personal representative of a deceased dealer or majority stockholder to continue to operate the dealership without the consent of the supplier.

(2) This section shall be supplemental to any provisions of the dealer agreement covering the return of inventory or specialized repair tools which provide the dealer with greater protection. The heirs or personal representative may pursue either the contract remedy or the remedy provided in this section, and an election to pursue the contract remedy shall not bar pursuit of the remedy provided in this section as to inventory or tools not affected by the contract remedy. Nothing in this section shall preclude a price for the inventory or tools which is greater than the total provided for in section 87-707.

Source:Laws 1991, LB 123, § 8.


87-709. Dealer agreement; void and unenforceable; when; violations; remedies.

(1) A term of a dealer agreement which is inconsistent with the terms of the Equipment Business Regulation Act shall be void and unenforceable and shall not waive any rights which are provided to a person by the act.

(2) A dealer may bring an action against a supplier in any court of competent jurisdiction for damages sustained by the dealer as a consequence of the supplier's violation of the act together with the actual costs of the action, including reasonable attorney's fees. The dealer may also be granted injunctive relief against unlawful termination, cancellation, nonrenewal, or change in competitive circumstances. The remedies authorized by this section shall not be exclusive and shall be in addition to any other remedies provided by law.

Source:Laws 1991, LB 123, § 9.


87-710. Obligations; applicability to successors.

The obligations of any supplier pursuant to the Equipment Business Regulation Act shall apply to any successor in interest of a supplier, including any purchaser of assets or stock, any surviving corporation resulting from merger, liquidation, or reorganization, any assignee, any receiver, or any trustee of the original supplier.

Source:Laws 1991, LB 123, § 10.


87-711. Act; applicability.

The Equipment Business Regulation Act shall apply to all dealer agreements in effect on May 2, 1991, which have no expiration date and are continuing agreements and to all dealer agreements entered into or renewed on or after May 2, 1991. Any dealer agreement in effect on May 2, 1991, which will terminate on a subsequent date shall be governed by the law as it existed prior to May 2, 1991.

Source:Laws 1991, LB 123, § 11.


87-801. Act, how cited.

Sections 87-801 to 87-807 shall be known and may be cited as the Financial Data Protection and Consumer Notification of Data Security Breach Act of 2006.

Source:Laws 2006, LB 876, § 1.    


87-802. Terms, defined.

For purposes of the Financial Data Protection and Consumer Notification of Data Security Breach Act of 2006:

(1) Breach of the security of the system means the unauthorized acquisition of unencrypted computerized data that compromises the security, confidentiality, or integrity of personal information maintained by an individual or a commercial entity. Good faith acquisition of personal information by an employee or agent of an individual or a commercial entity for the purposes of the individual or the commercial entity is not a breach of the security of the system if the personal information is not used or subject to further unauthorized disclosure. Acquisition of personal information pursuant to a search warrant, subpoena, or other court order or pursuant to a subpoena or order of a state agency is not a breach of the security of the system;

(2) Commercial entity includes a corporation, business trust, estate, trust, partnership, limited partnership, limited liability partnership, limited liability company, association, organization, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal entity, whether for profit or not for profit;

(3) Encrypted means converted by use of an algorithmic process to transform data into a form in which the data is rendered unreadable or unusable without use of a confidential process or key. Data shall not be considered encrypted if the confidential process or key was or is reasonably believed to have been acquired as a result of the breach of the security of the system;

(4) Notice means:

(a) Written notice;

(b) Telephonic notice;

(c) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. 7001, as such section existed on January 1, 2006;

(d) Substitute notice, if the individual or commercial entity required to provide notice demonstrates that the cost of providing notice will exceed seventy-five thousand dollars, that the affected class of Nebraska residents to be notified exceeds one hundred thousand residents, or that the individual or commercial entity does not have sufficient contact information to provide notice. Substitute notice under this subdivision requires all of the following:

(i) Electronic mail notice if the individual or commercial entity has electronic mail addresses for the members of the affected class of Nebraska residents;

(ii) Conspicuous posting of the notice on the web site of the individual or commercial entity if the individual or commercial entity maintains a web site; and

(iii) Notice to major statewide media outlets; or

(e) Substitute notice, if the individual or commercial entity required to provide notice has ten employees or fewer and demonstrates that the cost of providing notice will exceed ten thousand dollars. Substitute notice under this subdivision requires all of the following:

(i) Electronic mail notice if the individual or commercial entity has electronic mail addresses for the members of the affected class of Nebraska residents;

(ii) Notification by a paid advertisement in a local newspaper that is distributed in the geographic area in which the individual or commercial entity is located, which advertisement shall be of sufficient size that it covers at least one-quarter of a page in the newspaper and shall be published in the newspaper at least once a week for three consecutive weeks;

(iii) Conspicuous posting of the notice on the web site of the individual or commercial entity if the individual or commercial entity maintains a web site; and

(iv) Notification to major media outlets in the geographic area in which the individual or commercial entity is located;

(5) Personal information means either of the following:

(a) A Nebraska resident's first name or first initial and last name in combination with any one or more of the following data elements that relate to the resident if either the name or the data elements are not encrypted, redacted, or otherwise altered by any method or technology in such a manner that the name or data elements are unreadable:

(i) Social security number;

(ii) Motor vehicle operator's license number or state identification card number;

(iii) Account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to a resident's financial account;

(iv) Unique electronic identification number or routing code, in combination with any required security code, access code, or password; or

(v) Unique biometric data, such as a fingerprint, voice print, or retina or iris image, or other unique physical representation; or

(b) A user name or email address, in combination with a password or security question and answer, that would permit access to an online account.

Personal information does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records; and

(6) Redact means to alter or truncate data such that no more than the last four digits of a social security number, motor vehicle operator's license number, state identification card number, or account number is accessible as part of the personal information.

Source:Laws 2006, LB 876, § 2;    Laws 2016, LB835, § 27.    


87-803. Breach of security; investigation; notice to resident; notice to Attorney General.

(1) An individual or a commercial entity that conducts business in Nebraska and that owns or licenses computerized data that includes personal information about a resident of Nebraska shall, when it becomes aware of a breach of the security of the system, conduct in good faith a reasonable and prompt investigation to determine the likelihood that personal information has been or will be used for an unauthorized purpose. If the investigation determines that the use of information about a Nebraska resident for an unauthorized purpose has occurred or is reasonably likely to occur, the individual or commercial entity shall give notice to the affected Nebraska resident. Notice shall be made as soon as possible and without unreasonable delay, consistent with the legitimate needs of law enforcement and consistent with any measures necessary to determine the scope of the breach and to restore the reasonable integrity of the computerized data system.

(2) If notice of a breach of security of the system is required by subsection (1) of this section, the individual or commercial entity shall also, not later than the time when notice is provided to the Nebraska resident, provide notice of the breach of security of the system to the Attorney General.

(3) An individual or a commercial entity that maintains computerized data that includes personal information that the individual or commercial entity does not own or license shall give notice to and cooperate with the owner or licensee of the information of any breach of the security of the system when it becomes aware of a breach if use of personal information about a Nebraska resident for an unauthorized purpose occurred or is reasonably likely to occur. Cooperation includes, but is not limited to, sharing with the owner or licensee information relevant to the breach, not including information proprietary to the individual or commercial entity.

(4) Notice required by this section may be delayed if a law enforcement agency determines that the notice will impede a criminal investigation. Notice shall be made in good faith, without unreasonable delay, and as soon as possible after the law enforcement agency determines that notification will no longer impede the investigation.

Source:Laws 2006, LB 876, § 3;    Laws 2016, LB835, § 28.    


87-804. Compliance with notice requirements; manner.

(1) An individual or a commercial entity that maintains its own notice procedures which are part of an information security policy for the treatment of personal information and which are otherwise consistent with the timing requirements of section 87-803, is deemed to be in compliance with the notice requirements of section 87-803 if the individual or the commercial entity notifies affected Nebraska residents and the Attorney General in accordance with its notice procedures in the event of a breach of the security of the system.

(2) An individual or a commercial entity that is regulated by state or federal law and that maintains procedures for a breach of the security of the system pursuant to the laws, rules, regulations, guidances, or guidelines established by its primary or functional state or federal regulator is deemed to be in compliance with section 87-803 if the individual or commercial entity notifies affected Nebraska residents and the Attorney General in accordance with the maintained procedures in the event of a breach of the security of the system.

Source:Laws 2006, LB 876, § 4;    Laws 2016, LB835, § 29.    


87-805. Waiver; void and unenforceable.

Any waiver of the provisions of the Financial Data Protection and Consumer Notification of Data Security Breach Act of 2006 is contrary to public policy and is void and unenforceable.

Source:Laws 2006, LB 876, § 5.    


87-806. Attorney General; powers.

For purposes of the Financial Data Protection and Consumer Notification of Data Security Breach Act of 2006, the Attorney General may issue subpoenas and seek and recover direct economic damages for each affected Nebraska resident injured by a violation of the act.

Source:Laws 2006, LB 876, § 6.    


87-807. Act; applicability.

The Financial Data Protection and Consumer Notification of Data Security Breach Act of 2006 applies to the discovery of or notification pertaining to a breach of the security of the system that occurs on or after July 14, 2006.

Source:Laws 2006, LB 876, § 7.