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U.S. Code as of:
01/19/04
Section 1065. Incontestability of right to use mark under certain conditions
Except on a ground for which application to cancel may be filed
at any time under paragraphs (3) and (5) of section 1064 of this
title, and except to the extent, if any, to which the use of a mark
registered on the principal register infringes a valid right
acquired under the law of any State or Territory by use of a mark
or trade name continuing from a date prior to the date of
registration under this chapter of such registered mark, the right
of the registrant to use such registered mark in commerce for the
goods or services on or in connection with which such registered
mark has been in continuous use for five consecutive years
subsequent to the date of such registration and is still in use in
commerce, shall be incontestable: Provided, That -
(1) there has been no final decision adverse to registrant's
claim of ownership of such mark for such goods or services, or to
registrant's right to register the same or to keep the same on
the register; and
(2) there is no proceeding involving said rights pending in the
Patent and Trademark Office or in a court and not finally
disposed of; and
(3) an affidavit is filed with the Director within one year
after the expiration of any such five-year period setting forth
those goods or services stated in the registration on or in
connection with which such mark has been in continuous use for
such five consecutive years and is still in use in commerce, and
other matters specified in paragraphs (1) and (2) of this
section; and
(4) no incontestable right shall be acquired in a mark which is
the generic name for the goods or services or a portion thereof,
for which it is registered.
Subject to the conditions above specified in this section, the
incontestable right with reference to a mark registered under this
chapter shall apply to a mark registered under the Act of March 3,
1881, or the Act of February 20, 1905, upon the filing of the
required affidavit with the Director within one year after the
expiration of any period of five consecutive years after the date
of publication of a mark under the provisions of subsection (c) of
section 1062 of this title.
The Director shall notify any registrant who files the
above-prescribed affidavit of the filing thereof.
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