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15 U.S.C. § 1115 — Registration on principal register as evidence of exclusive right to use mark; defenses

Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1115 — Registration on principal register as evidence of exclusive right to use mark; defenses

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Source file: Laws/federal/codes/united-states-code/title-15/section-1115-registration-on-principal-register-as-evidence-of-exclusive-right-to-use--7018d7bb4c.md
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Source location: Title 15, Chapter 22, § 1115; chapter-022-trademarks.md

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**(a) Evidentiary value; defenses** Any registration issued under the Act of March 3, 1881, or the Act of February 20, 1905, or of a mark registered on the principal register provided by this chapter and owned by a party to an action shall be admissible in evidence and shall be prima facie evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the registration subject to any conditions or limitations stated therein, but shall not preclude another person from proving any legal or equitable defense or defect, including those set forth in subsection (b), which might have been asserted if such mark had not been registered. **(b) Incontestability; defenses** To the extent that the right to use the registered mark has become incontestable under [section 1065 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1065&num=0&edition=prelim), the registration shall be conclusive evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce. Such conclusive evidence shall relate to the exclusive right to use the mark on or in connection with the goods or services specified in the affidavit filed under the provisions of [section 1065 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1065&num=0&edition=prelim), or in the renewal application filed under the provisions of [section 1059 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1059&num=0&edition=prelim) if the goods or services specified in the renewal are fewer in number, subject to any conditions or limitations in the registration or in such affidavit or renewal application. Such conclusive evidence of the right to use the registered mark shall be subject to proof of infringement as defined in [section 1114 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1114&num=0&edition=prelim), and shall be subject to the following defenses or defects: (1) That the registration or the incontestable right to use the mark was obtained fraudulently; or (2) That the mark has been abandoned by the registrant; or (3) That the registered mark is being used by or with the permission of the registrant or a person in privity with the registrant, so as to misrepresent the source of the goods or services on or in connection with which the mark is used; or (4) That the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the party’s individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin; or (5) That the mark whose use by a party is charged as an infringement was adopted without knowledge of the registrant’s prior use and has been continuously used by such party or those in privity with him from a date prior to (A) the date of constructive use of the mark established pursuant to [section 1057(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1057/c&num=0&edition=prelim), (B) the registration of the mark under this chapter if the application for registration is filed before the effective date of the Trademark Law Revision Act of 1988, or (C) publication of the registered mark under subsection (c) of [section 1062 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1062&num=0&edition=prelim): Provided, however, That this defense or defect shall apply only for the area in which such continuous prior use is proved; or (6) That the mark whose use is charged as an infringement was registered and used prior to the registration under this chapter or publication under subsection (c) of [section 1062 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1062&num=0&edition=prelim) of the registered mark of the registrant, and not abandoned: Provided, however, That this defense or defect shall apply only for the area in which the mark was used prior to such registration or such publication of the registrant’s mark; or (7) That the mark has been or is being used to violate the antitrust laws of the United States; or (8) That the mark is functional; or (9) That equitable principles, including laches, estoppel, and acquiescence, are applicable.

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1062 — Publication

**(a) Examination and publication** Upon the filing of an application for registration and payment of the prescribed fee, the Director shall refer the application to the examiner in charge of the registration of marks, who shall cause an examination to be made and, if on such examination it shall appear that the applicant is entitled to registration, or would be entitled to registration upon the acceptance of the statement of use required by [section 1051(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/d&num=0&edition=prelim), the Director shall cause the mark to be published in the Official Gazette of the Patent and Trademark Office: Provided, That in the case of an applicant claiming concurrent use, or in the case of an application to be placed in an interference as provided for in [section 1066 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1066&num=0&edition=prelim) the mark, if otherwise registrable, may be published subject to the determination of the rights of the parties to such proceedings. **(b) Refusal of registration; amendment of application; abandonment; extensions of time to respond** (1) If the applicant is found not entitled to registration, the examiner shall notify the applicant thereof and of the reasons therefor. The applicant may reply or amend the application, which shall then be reexamined. This procedure may be repeated until the examiner finally refuses registration of the mark or the application is abandoned as described in paragraph (2). (2) After notification under paragraph (1), the applicant shall have a period of 6 months in which to reply or amend the application, or such shorter time that is not less than 60 days, as prescribed by the Direc

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1114 — Remedies; infringement; innocent infringement by printers and publishers

(1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive. As used in this paragraph, the term “any person” includes the United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, or other persons acting for the United States and with the authorization and consent of the United States, and any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. The United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, other persons acting for the United States and with the authorization and consent of the Un

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 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), (5), and (6) of [section 1064 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1064&num=0&edition=prelim), 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 owner 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 the owner’s claim of ownership of such mark for such goods or services, or to the owner’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 United States 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) hereof; 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

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1051 — Application for registration; verification

**(a) Application for use of trademark** (1) The owner of a trademark used in commerce may request registration of its trademark on the principal register hereby established by paying the prescribed fee and filing in the Patent and Trademark Office an application and a verified statement, in such form as may be prescribed by the Director, and such number of specimens or facsimiles of the mark as used as may be required by the Director. (2) The application shall include specification of the applicant’s domicile and citizenship, the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. (3) The statement shall be verified by the applicant and specify that— (A) the person making the verification believes that he or she, or the juristic person in whose behalf he or she makes the verification, to be the owner of the mark sought to be registered; (B) to the best of the verifier’s knowledge and belief, the facts recited in the application are accurate; (C) the mark is in use in commerce; and (D) to the best of the verifier’s knowledge and belief, no other person has the right to use such mark in commerce either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods of such other person, to cause confusion, or to cause mistake, or to deceive, except that, in the case of every application claiming concurrent use, the applicant shall— (i) state exceptions to the claim of exclusive use; and (ii) shall 11 So in original. The word “shall” probably should not appear. specify, to the extent of the verifier’s knowledge— (I) any concurrent use by othe

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1059 — Renewal of registration

**(a) Period of renewal; time for renewal** Subject to the provisions of [section 1058 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1058&num=0&edition=prelim), each registration may be renewed for periods of 10 years at the end of each successive 10-year period following the date of registration upon payment of the prescribed fee and the filing of a written application, in such form as may be prescribed by the Director. Such application may be made at any time within 1 year before the end of each successive 10-year period for which the registration was issued or renewed, or it may be made within a grace period of 6 months after the end of each successive 10-year period, upon payment of a fee and surcharge prescribed therefor. If any application filed under this section is deficient, the deficiency may be corrected within the time prescribed after notification of the deficiency, upon payment of a surcharge prescribed therefor. **(b) Notification of refusal of renewal** If the Director refuses to renew the registration, the Director shall notify the registrant of the Commissioner’s 11 So in original. Probably should be “Director’s”. refusal and the reasons therefor. **(c) Designation of resident for service of process and notices** If the registrant is not domiciled in the United States the registrant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. Such notices or process may be served upon the person so designated by leaving with that person or mailing to that person a copy thereof at the address specified in the last designation so filed. If the pers

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1066a — Ex parte expungement

**(a) Petition** Notwithstanding sections 1057(b) and 1072 of this title, and subsections (a) and (b) of [section 1115 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1115&num=0&edition=prelim), any person may file a petition to expunge a registration of a mark on the basis that the mark has never been used in commerce on or in connection with some or all of the goods or services recited in the registration. **(b) Contents of petition** A petition filed under subsection (a), together with any supporting documents, shall— (1) identify the registration that is the subject of the petition; (2) identify each good or service recited in the registration for which it is alleged that the mark has never been used in commerce; (3) include a verified statement that sets forth— (A) the elements of the reasonable investigation the petitioner conducted to determine that the mark has never been used in commerce on or in connection with the goods and services identified in the petition; and (B) any additional facts that support the allegation that the mark has never been used in commerce on or in connection with the identified goods and services; (4) include any supporting evidence on which the petitioner relies; and (5) be accompanied by the fee prescribed by the Director. **(c) Initial determination; institution** (1) **Prima facie case determination, institution, and notification** — The Director shall, for each good or service identified under subsection (b)(2), determine whether the petition sets forth a prima facie case of the mark having never been used in commerce on or in connection with each such good or service, institute an ex parte expungement proceeding for each good or service for which the Director determines that

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1115 — Registration on principal register as evi-

Page 1312 TITLE 15—COMMERCE AND TRADE § 1115 AMENDMENTS 2005—Par. (3). Pub. L. 109–9 added par. (3). 1999—Par. (1). Pub. L. 106–43, in undesignated par., in- serted after ‘‘includes’’ in first sentence ‘‘the United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, or other persons acting for the United States and with the authorization and consent of the United States, and’’ and, in second sentence, substituted ‘‘The United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, other persons acting for the United States and with the authorization and consent of the United States, and any’’ for ‘‘Any’’. Par. (2). Pub. L. 106–113, § 1000(a)(9) [title III, § 3004(1)], in introductory provisions, substituted ‘‘under section 1125(a) or (d) of this title’’ for ‘‘under section 1125(a) of this title’’. Par. (2)(D), (E). Pub. L. 106–113, § 1000(a)(9) [title III, § 3004(2)], added subpar. (D) and redesignated former subpar. (D) as (E). 1998—Par. (1). Pub. L. 105–330 substituted ‘‘As used in this paragraph’’ for ‘‘As used in this subsection’’ in last paragraph. 1992—Par. (1). Pub. L. 102–542 inserted at end ‘‘As used in this subsection, the term ‘any person’ includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovern- mental entity.’’ 1988—Par. (2). Pub. L. 100–667 amended par. (2) gen- erally. Prior to amendment, par. (2) read as follows: ‘‘Notwithstanding any other provision of this chapter, the re

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