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U.S. Code as of:
01/19/04
Section 1052. Trademarks registrable on principal register; concurrent registration
No trademark by which the goods of the applicant may be
distinguished from the goods of others shall be refused
registration on the principal register on account of its nature
unless it -
(a) Consists of or comprises immoral, deceptive, or scandalous
matter; or 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; or a
geographical indication which, when used on or in connection with
wines or spirits, identifies a place other than the origin of the
goods and is first used on or in connection with wines or spirits
by the applicant on or after one year after the date on which the
WTO Agreement (as defined in section 3501(9) of title 19) enters
into force with respect to the United States.
(b) Consists of or comprises the flag or coat of arms or other
insignia of the United States, or of any State or municipality, or
of any foreign nation, or any simulation thereof.
(c) Consists of or comprises a name, portrait, or signature
identifying a particular living individual except by his written
consent, or the name, signature, or portrait of a deceased
President of the United States during the life of his widow, if
any, except by the written consent of the widow.
(d) Consists of or comprises a mark which so resembles a mark
registered in the Patent and Trademark Office, or a mark or trade
name previously used in the United States by another and not
abandoned, as to be likely, when used on or in connection with the
goods of the applicant, to cause confusion, or to cause mistake, or
to deceive: Provided, That if the Director determines that
confusion, mistake, or deception is not likely to result from the
continued use by more than one person of the same or similar marks
under conditions and limitations as to the mode or place of use of
the marks or the goods on or in connection with which such marks
are used, concurrent registrations may be issued to such persons
when they have become entitled to use such marks as a result of
their concurrent lawful use in commerce prior to (1) the earliest
of the filing dates of the applications pending or of any
registration issued under this chapter; (2) July 5, 1947, in the
case of registrations previously issued under the Act of March 3,
1881, or February 20, 1905, and continuing in full force and effect
on that date; or (3) July 5, 1947, in the case of applications
filed under the Act of February 20, 1905, and registered after July
5, 1947. Use prior to the filing date of any pending application or
a registration shall not be required when the owner of such
application or registration consents to the grant of a concurrent
registration to the applicant. Concurrent registrations may also be
issued by the Director when a court of competent jurisdiction has
finally determined that more than one person is entitled to use the
same or similar marks in commerce. In issuing concurrent
registrations, the Director shall prescribe conditions and
limitations as to the mode or place of use of the mark or the goods
on or in connection with which such mark is registered to the
respective persons.
(e) Consists of a mark which (1) when used on or in connection
with the goods of the applicant is merely descriptive or
deceptively misdescriptive of them, (2) when used on or in
connection with the goods of the applicant is primarily
geographically descriptive of them, except as indications of
regional origin may be registrable under section 1054 of this
title, (3) when used on or in connection with the goods of the
applicant is primarily geographically deceptively misdescriptive of
them, (4) is primarily merely a surname, or (5) comprises any
matter that, as a whole, is functional.
(f) Except as expressly excluded in subsections (a), (b), (c),
(d), (e)(3), and (e)(5) of this section, nothing in this chapter
shall prevent the registration of a mark used by the applicant
which has become distinctive of the applicant's goods in commerce.
The Director may accept as prima facie evidence that the mark has
become distinctive, as used on or in connection with the
applicant's goods in commerce, proof of substantially exclusive and
continuous use thereof as a mark by the applicant in commerce for
the five years before the date on which the claim of
distinctiveness is made. Nothing in this section shall prevent the
registration of a mark which, when used on or in connection with
the goods of the applicant, is primarily geographically deceptively
misdescriptive of them, and which became distinctive of the
applicant's goods in commerce before December 8, 1993.
A mark which when used would cause dilution under section 1125(c)
of this title may be refused registration only pursuant to a
proceeding brought under section 1063 of this title. A registration
for a mark which when used would cause dilution under section
1125(c) of this title may be canceled pursuant to a proceeding
brought under either section 1064 of this title or section 1092 of
this title.
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