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To amend sections 1345.07, 1345.51, 1349.80, and | 1 |
1349.81, to enact new section 1349.82, and to | 2 |
repeal section 1349.82 of the Revised Code to | 3 |
designate the offense of advertising or conducting | 4 |
a live musical performance or production in Ohio | 5 |
through the use of a false, deceptive, or | 6 |
misleading affiliation, connection, or association | 7 |
between a performing group and a recording group | 8 |
as an unfair or deceptive act or practice, to | 9 |
increase the civil penalty for violating a | 10 |
temporary restraining order preliminary | 11 |
injunction, or permanent injunction to restrain | 12 |
and prevent that act or practice, and to eliminate | 13 |
the duties of the attorney general regarding | 14 |
investigations of persons alleged to have | 15 |
committed that offense. | 16 |
Section 1. That sections 1345.07, 1345.51, 1349.80, and | 17 |
1349.81 be amended and new section 1349.82 of the Revised Code be | 18 |
enacted to read as follows: | 19 |
Sec. 1345.07. (A) If the attorney general, by the attorney | 20 |
general's own inquiries or as a result of complaints, has | 21 |
reasonable cause to believe that a supplier has engaged or is | 22 |
engaging in an act or practice that violates this chapter, and | 23 |
that the action would be in the public interest, the attorney | 24 |
general may bring any of the following: | 25 |
(1) An action to obtain a declaratory judgment that the act | 26 |
or practice violates section 1345.02, 1345.03, or 1345.031 of the | 27 |
Revised Code; | 28 |
(2)(a) An action, with notice as required by Civil Rule 65, | 29 |
to obtain a temporary restraining order, preliminary injunction, | 30 |
or permanent injunction to restrain the act or practice. If the | 31 |
attorney general shows by a preponderance of the evidence that the | 32 |
supplier has violated or is violating section 1345.02, 1345.03, or | 33 |
1345.031 of the Revised Code, the court may issue a temporary | 34 |
restraining order, preliminary injunction, or permanent injunction | 35 |
to restrain and prevent the act or practice. | 36 |
(b)(i) Except as provided in division (A)(2)(b)(ii) of this | 37 |
section, on motion of the attorney general, or on its own motion, | 38 |
the court may impose a civil penalty of not more than five | 39 |
thousand dollars for each day of violation of a temporary | 40 |
restraining order, preliminary injunction, or permanent injunction | 41 |
issued under this section, if the supplier received notice of the | 42 |
action. The civil penalties shall be paid as provided in division | 43 |
(G) of this section. | 44 |
(ii) If the court issues under this section a temporary | 45 |
restraining order, preliminary injunction, or permanent injunction | 46 |
to restrain and prevent an act or practice that is a violation of | 47 |
section 1345.02 and division (A) of section 1349.81 of the Revised | 48 |
Code, on motion of the attorney general, or on its own motion, the | 49 |
court may impose a civil penalty of not less than five thousand | 50 |
dollars and not more than fifteen thousand dollars for each day of | 51 |
violation of the temporary restraining order, preliminary | 52 |
injunction, or permanent injunction, if the supplier received | 53 |
notice of the action. The civil penalties shall be paid as | 54 |
provided in division (G) of this section. | 55 |
(c) Upon the commencement of an action under division (A)(2) | 56 |
of this section against a supplier who operates under a license, | 57 |
permit, certificate, commission, or other authorization issued by | 58 |
the supreme court or by a board, commission, department, division, | 59 |
or other agency of this state, the attorney general shall | 60 |
immediately notify the supreme court or agency that such an action | 61 |
has been commenced against the supplier. | 62 |
(3) A class action under Civil Rule 23, as amended, on behalf | 63 |
of consumers who have engaged in consumer transactions in this | 64 |
state for damage caused by: | 65 |
(a) An act or practice enumerated in division (B) or (D) of | 66 |
section 1345.02 of the Revised Code; | 67 |
(b) Violation of a rule adopted under division (B)(2) of | 68 |
section 1345.05 of the Revised Code before the consumer | 69 |
transaction on which the action is based; | 70 |
(c) An act or practice determined by a court of this state to | 71 |
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code | 72 |
and committed after the decision containing the determination has | 73 |
been made available for public inspection under division (A)(3) of | 74 |
section 1345.05 of the Revised Code. | 75 |
(B) On motion of the attorney general and without bond, in | 76 |
the attorney general's action under this section, the court may | 77 |
make appropriate orders, including appointment of a referee or a | 78 |
receiver, for sequestration of assets, to reimburse consumers | 79 |
found to have been damaged, to carry out a transaction in | 80 |
accordance with a consumer's reasonable expectations, to strike or | 81 |
limit the application of unconscionable clauses of contracts so as | 82 |
to avoid an unconscionable result, or to grant other appropriate | 83 |
relief. The court may assess the expenses of a referee or receiver | 84 |
against the supplier. | 85 |
(C) Any moneys or property recovered by the attorney general | 86 |
in an action under this section that cannot with due diligence | 87 |
within five years be restored by a referee to consumers shall be | 88 |
unclaimed funds reportable under Chapter 169. of the Revised Code. | 89 |
(D) In addition to the other remedies provided in this | 90 |
section, if the violation is an act or practice that was declared | 91 |
to be unfair, deceptive, or unconscionable by rule adopted | 92 |
pursuant to division (B)(2) of section 1345.05 of the Revised Code | 93 |
before the consumer transaction on which the action is based | 94 |
occurred or an act or practice that was determined by a court of | 95 |
this state to violate section 1345.02, 1345.03, or 1345.031 of the | 96 |
Revised Code and committed after the decision containing the | 97 |
court's determination was made available for public inspection | 98 |
pursuant to division (A)(3) of section 1345.05 of the Revised | 99 |
Code, the attorney general may request and the court may impose a | 100 |
civil penalty of not more than twenty-five thousand dollars | 101 |
against the supplier. The civil penalties shall be paid as | 102 |
provided in division (G) of this section. | 103 |
(E) No action may be brought by the attorney general under | 104 |
this section to recover for a transaction more than two years | 105 |
after the occurrence of a violation. | 106 |
(F) If a court determines that provision has been made for | 107 |
reimbursement or other appropriate corrective action, insofar as | 108 |
practicable, with respect to all consumers damaged by a violation, | 109 |
or in any other appropriate case, the attorney general, with court | 110 |
approval, may terminate enforcement proceedings brought by the | 111 |
attorney general upon acceptance of an assurance from the supplier | 112 |
of voluntary compliance with Chapter 1345. of the Revised Code, | 113 |
with respect to the alleged violation. The assurance shall be | 114 |
filed with the court and entered as a consent judgment. Except as | 115 |
provided in division (A) of section 1345.10 of the Revised Code, a | 116 |
consent judgment is not evidence of prior violation of such | 117 |
chapter. Disregard of the terms of a consent judgment entered upon | 118 |
an assurance shall be treated as a violation of an injunction | 119 |
issued under this section. | 120 |
(G) Civil penalties ordered pursuant to divisions (A) and (D) | 121 |
of this section shall be paid as follows: one-fourth of the amount | 122 |
to the treasurer of the county in which the action is brought and | 123 |
three-fourths to the consumer protection enforcement fund created | 124 |
by section 1345.51 of the Revised Code. | 125 |
(H) The remedies available to the attorney general under this | 126 |
section are cumulative and concurrent, and the exercise of one | 127 |
remedy by the attorney general does not preclude or require the | 128 |
exercise of any other remedy. The attorney general is not required | 129 |
to use any procedure set forth in section 1345.06 of the Revised | 130 |
Code prior to the exercise of any remedy set forth in this | 131 |
section. | 132 |
Sec. 1345.51. There is hereby created in the state treasury | 133 |
the consumer protection enforcement fund. The fund shall include | 134 |
civil penalties ordered pursuant to divisions (A) and (D) of | 135 |
section 1345.07 of the Revised Code and paid as provided in | 136 |
division (G) of that section, all civil penalties assessed under | 137 |
division (A) of section 1349.192 | 138 |
139 | |
general and all penalties imposed under section 4549.48 of the | 140 |
Revised Code, and all money unclaimed under section 4549.50 of the | 141 |
Revised Code. The money in the consumer protection enforcement | 142 |
fund shall be used for the sole purpose of paying expenses | 143 |
incurred by the consumer protection section of the office of the | 144 |
attorney general. | 145 |
Sec. 1349.80. As used in this section and | 146 |
1349.81
| 147 |
(A) "Performing group" means a vocal or instrumental group | 148 |
seeking to use the name of a recording group that previously | 149 |
released a commercial sound recording under the recording group's | 150 |
name. | 151 |
(B) "Recording group" means a vocal or instrumental group | 152 |
that includes at least one member who satisfies both of the | 153 |
following criteria: | 154 |
(1) The member previously released a commercial sound | 155 |
recording under the vocal or instrumental group's name. | 156 |
(2) The member has a legal right to the vocal or instrumental | 157 |
group's name by virtue of use of or operation under that group | 158 |
name or affiliation with the group. | 159 |
(C) "Commercial sound recording" means a work that results | 160 |
from the fixation on a material object of a series of musical, | 161 |
spoken, or other sounds, regardless of the nature of the material | 162 |
object, including, but not limited to, a compact disc, cassette | 163 |
tape, or phonograph album in which sounds are embodied. | 164 |
Sec. 1349.81. (A) Except as otherwise provided in division | 165 |
(B) of this section, no person shall advertise or conduct a live | 166 |
musical performance or production in this state through the use of | 167 |
a false, deceptive, or misleading affiliation, connection, or | 168 |
association between a performing group and a recording group. | 169 |
(B) Division (A) of this section does not apply to a person | 170 |
if any of the following circumstances apply: | 171 |
(1) The performing group is the authorized registrant and | 172 |
owner of a federal service mark for that group registered in the | 173 |
United States patent and trademark office or is the owner of a | 174 |
valid trademark for that group under the "Lanham Act," 60 Stat. | 175 |
427-443 (1946), 15 U.S.C. 1125(a), as amended. | 176 |
(2) At least one member of the performing group is a member | 177 |
of the recording group and has a legal right to that group name by | 178 |
virtue of use or operation under the group name without having | 179 |
abandoned the name or affiliation with the group. | 180 |
(3) The live musical performance or production is identified | 181 |
in all advertising and promotion for the performance as a salute | 182 |
or tribute to the recording group. | 183 |
(4) The advertising does not relate to a live musical | 184 |
performance or production that the performing group conducts in | 185 |
this state. | 186 |
(5) The performance or production is authorized expressly in | 187 |
writing by at least one member of the recording group. | 188 |
Sec. 1349.82. A violation of division (A) of section 1349.81 | 189 |
of the Revised Code is an unfair or deceptive act or practice in | 190 |
violation of section 1345.02 of the Revised Code. | 191 |
Section 2. That existing sections 1345.07, 1345.51, 1349.80, | 192 |
and 1349.81 and section 1349.82 of the Revised Code are hereby | 193 |
repealed. | 194 |