| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the use by third-party delivery services of merchants' |
|
|
marks or other intellectual property; authorizing a civil penalty. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is |
|
|
amended by adding Chapter 114 to read as follows: |
|
|
CHAPTER 114. THIRD-PARTY DELIVERY SERVICES |
|
|
Sec. 114.0001. DEFINITIONS. In this chapter: |
|
|
(1) "Mark" has the meaning assigned by Section 16.001. |
|
|
(2) "Merchant" means a restaurant or other business |
|
|
entity that sells food or other goods directly to consumers. |
|
|
(3) "Third-party delivery service" means a business |
|
|
entity that: |
|
|
(A) allows a consumer to purchase food or other |
|
|
goods from a merchant through the entity's proprietary Internet |
|
|
website, mobile application, or other Internet-based platform; |
|
|
(B) delivers, including through use of an |
|
|
independent contractor or agent of the entity, the purchased goods |
|
|
to the consumer for a fee that is in addition to the fee charged by |
|
|
the merchant for the goods; and |
|
|
(C) operates outside of the merchant's business. |
|
|
Sec. 114.0002. CONSENT REQUIRED FOR USE OF MERCHANT'S MARKS |
|
|
OR INTELLECTUAL PROPERTY. (a) A third-party delivery service may |
|
|
not use a merchant's mark or other intellectual property on the |
|
|
service's Internet website or application without the prior written |
|
|
consent of the merchant. |
|
|
(b) To receive valid consent from a merchant under |
|
|
Subsection (a), a third-party delivery service must be authorized |
|
|
to conduct business in this state. |
|
|
Sec. 114.0003. CIVIL PENALTY; INJUNCTIVE RELIEF. (a) A |
|
|
third-party delivery service that violates Section 114.0002 is |
|
|
liable to this state for a civil penalty in an amount not to exceed |
|
|
$1,000 for each violation. Each day of a continuing violation is a |
|
|
separate violation. |
|
|
(b) The attorney general may bring an action in the name of |
|
|
the state against the third-party delivery service for: |
|
|
(1) injunctive relief; |
|
|
(2) recovery of a civil penalty imposed under this |
|
|
section; or |
|
|
(3) both injunctive relief and a civil penalty. |
|
|
(c) An action under this section may be brought in a |
|
|
district court in: |
|
|
(1) Travis County; or |
|
|
(2) a county in which any part of the violation or |
|
|
threatened violation occurs. |
|
|
(d) A civil penalty collected under this section shall be |
|
|
deposited in the state treasury to the credit of the general revenue |
|
|
fund. |
|
|
Sec. 114.0004. PRIVATE CAUSE OF ACTION. (a) If a |
|
|
third-party delivery service violates Section 114.0002, a merchant |
|
|
aggrieved of the violation may bring an action for: |
|
|
(1) injunctive relief; |
|
|
(2) damages in an amount equal to the greater of: |
|
|
(A) the merchant's actual damages arising from |
|
|
the violation; or |
|
|
(B) $5,000, as exemplary damages, irrespective |
|
|
of whether the merchant has actual damages; or |
|
|
(3) both injunctive relief and damages. |
|
|
(b) A merchant that is awarded actual damages under |
|
|
Subsection (a)(2)(A) may also be awarded exemplary damages. |
|
|
SECTION 2. This Act takes effect September 1, 2021. |