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thereto as to be likely, when applied to the goods of such other person, to cause confusion, or to cause mistake, or to deceive; that the specimens or facsimiles show the mark as actually used in connection with the goods; and that the facts set forth in the application are true. (c) For an application for the registration of a mark for goods or services falling within a plurality of classes, see rule 2.87.

2.35 Description of mark. A description of the mark, which must be acceptable to the Examiner of Trademarks, may be included in the application, and must be included if required by the Examiner. If the mark is displayed in color or a color combination, the colors should be described in the application.

2.36 Identification of prior registrations. Prior registrations of the same or similar marks owned by the applicant should be identified in the application.

2.37 Authorization for representation; U.S. representative. The authorization of a qualified person to represent applicant (rule 2.17 (b)) and the appointment of a domestic representative (rule 2.24) may be included as a paragraph or paragraphs in the application.

2.38 Use by predecessor or by related companies. (a) If the first use, the date of which is required by paragraph (a) (1) (vii) or (viii) of rule 2.33, was by a predecessor in title, or by a related company (sections 5 and 45 of the act), and such use inures to the benefit of the applicant, the date of such first use may be asserted with a statement that such first use was by the predecessor in title or by the related company, as the case may be.

(b) If the mark is not in fact being used by the applicant but is being used by one or more related companies whose use inures to the benefit of the applicant under section 5 of the act, such facts must be indicated in the application.

(c) The Office may require such details concerning the nature of the relationship and such proofs as may be necessary and appropriate for the purpose of showing that the use by related companies inures to the benefit of the applicant and does not affect the validity of the mark. (Sec. 5, 60 Stat. 429; 15 U.S.C. 1055)

2.39 Omission of allegation of use in commerce by foreign applicants. (a) The allegation that the mark is in use in commerce, required by rule 2.33(b), and the statements of the dates of applicant's first use, required by rule 2.33 (a) (1) (vii) and (viii), may be omitted in the case of an application filed pursuant to section 44 (e) of the act for registration of a mark duly registered in the country of origin of a foreign applicant, provided the application when filed is accompanied by a certificate of the trademark office of the foreign country showing that the mark has been registered in the country of origin of the applicant and also showing the mark, the goods for which

registered and that said registration is then in full force and effect. If the certificate is not in the English language, a translation is required.

(b) Such allegations and statements may also be omitted in the case of an application claiming the benefit of a prior foreign application in accordance with section 44(d) of the act. The application in such case shall state the date and country of the first foreign application and, before the application can be considered as allowable, there must be filed a certificate of the trademark office of the foreign country showing that the mark has been registered in the country of origin of the applicant and also showing the mark, the goods for which registered and the date of filing of the application. In such cases the specification of goods shall not exceed the scope of that covered by the foreign registration or application. In the event the application is based upon a subsequent regularly filed application in the same foreign country the application must so state and must show that any prior filed application has been withdrawn, abandoned or otherwise disposed of, without having been laid open to public inspection and without having any rights outstanding, and has not served as a basis for claiming a right of priority.

(Sec. 44, 60 Stat. 441 as amended; 15 U.S.C. 1126)

Proof of distinctiveness under section 2(f). (a) When registration is sought of a mark which would be unregistrable by reason of section 2(e) of the act but which is said by applicant to have become distinctive in commerce of the goods set forth in the application, applicant may, in support of registrability, submit with the application, or in response to a request for evidence or to a refusal to register, affidavits, depositions, or other appropriate evidence showing duration, extent and nature of use and advertising expenditures in connection therewith (identifying types of media and attaching typical advertisements), and affidavits, letters or statements from the trade or public, or both, or other appropriate evidence tending to show that the mark distinguishes such goods.

(b) In appropriate cases, ownership of one or more prior registrations on the Principal Register or under the act of 1905 of the same. mark may be accepted as prima facie evidence of distinctiveness. Also, if the mark is said to have become distinctive of applicant's goods by reason of substantially exclusive and continuous use thereof by applicant for the five years next preceding the application filing date, a showing by way of verified statements in the application may, in appropriate cases, be accepted as prima facie evidence of distinctiveness. In each of these situations, however, further evidence may be required. (Sec. 2, 60 Stat. 428; 15 U.S.C. 1052)

2.42 Concurrent use. (a) An application for registration as a lawful concurrent user shall specify and contain all the elements re

quired by the preceding sections. The applicant in addition shall state in the application, to the extent of his knowledge, the concurrent lawful use of the mark by others, setting forth their names and addresses; registrations issued to or applications filed by such others, if any; the areas of such use; the goods on or in connection with which such use is made; the mode of such use; the periods of such use; and the area, the goods, and the mode of use for which the applicant seeks registration.

(b) The verification shall be made with the stated exceptions.

(Sec. 2, 60 Stat. 428; 15 U.S.C. 1052)

2.43 Service mark. In an application to register a service mark, the application shall specify and contain all the elements required by the preceding sections for trademarks, but shall be modified to relate to services instead of to goods wherever necessary.

(Sec. 3, 60 Stat. 429; 15 U.S.C. 1053)

2.44 Collective mark. In an application to register a collective mark, the application shall specify and contain all applicable elements required by the preceding sections for trademarks, but shall, in addition, specify the class of persons entitled to use the mark, indicating their relationship to the applicant, and the nature of the applicant's control over the use of the mark.

(Sec. 4, 60 Stat. 429; 15 U.S.C. 1054)

2.45 Certification mark. In an application to register a certification mark, the application shall specify and contain all applicable elements required by the preceding sections for trademarks. It shall in addition, specify the manner in which and the conditions under which the certification mark is used; it shall allege that the applicant exercises legitimate control over the use of the mark and that he is not himself engaged in the production or marketing of the goods or services to which the mark is applied.

(Sec. 4, 60 Stat. 429, 435; 15 U.S.C. 1054)

2.46 Principal Register. All applications will be treated as seeking registration on the Principal Register unless otherwise stated in the application. Service marks, collective marks, and certification marks, registrable in accordance with the applicable provisions of section 2 of the act, are registered on the Principal Register.

2.47 Supplemental Register. In an application to register on the Supplemental Register, the application shall so indicate and shall specify that the mark has been in continuous use in commerce, specifying the nature of such commerce, by the applicant for the preceding year, if the application is based on such use. When an applicant requests registration without a full year's use of the mark, in accord

ance with the last paragraph of section 23 of the act, the showing required must be separate from the application.

(Sec. 23, 60 Stat. 435; 15 U.S.C. 1091)

DRAWING

AUTHORITY NOTE: Rules 2.51 to 2.55 interpret or apply sec. 1, 60 Stat. 427; 15 U.S.C. 1051.

2.51 Drawing required. (a) The drawing of the trademark shall be a substantially exact representation thereof as actually used on or in connection with the goods.

(b) The drawing of a service mark shall be a substantially exact representation of the mark as used in the sale or advertising of the services. The drawing of a service mark may be dispensed with in the case of a mark not capable of representation by a drawing, but in any such case the application must contain an adequate description.

(c) In the case of an application for registration on the Supplemental Register, the drawing, when appropriate and necessary (section 23, third paragraph, of the act), may be the drawing of a package or configuration of goods.

(d) If the application is for the registration only of a word, letter or numeral, or any combination thereof, not depicted in special form, the drawing may be the mark typed in capital letters on paper, otherwise complying with the requirements of rule 2.52.

2.52 Requirements for drawings. (a) Character of drawing. All drawings, except as otherwise provided, must be made with the pen or by a process which will give them satisfactory reproduction characteristics. A photolithographic reproduction or printer's proof copy may be used if otherwise suitable. Every line and letter must be black. This direction applies to all lines, however fine, and to shading. All lines must be clean, sharp, and solid, and they must not be too fine or crowded. Surface shading, when used, should be open. The requirements of this paragraph are not necessary in the case of drawings permitted and filed in accordance with paragraph (d) of rule 2.51.

(b) Paper and ink. The drawing must be made upon pure white durable paper, the surface of which is calendered and smooth. A good grade of bond paper is suitable. India ink alone must be used for pen drawings to secure perfectly black solid lines. The use of white pigment to cover lines is not acceptable.

(c) Size of paper and margins. The size of the sheet on which a drawing is made must be 8 inches wide and 11 to 13 inches long. One of the shorter sides of the sheet should be regarded as its top. When the figure is longer than the width of the sheet, the sheet should be turned on its side with the top at the right. The size of the mark

must be such as to leave a margin of at least one inch on the sides and bottom of the paper and at least one inch between it and the heading.

(d) Heading. Across the top of the drawing, beginning one inch from the top edge and not exceeding one-fourth of the sheet, there should be placed a heading, listing in separate lines, applicant's name, applicant's post office address, the dates of first use, and the goods or services recited in the application (or typical items of the goods or services if a number are recited in the application). This heading may be typewritten.

(e) Linings for color. Where color is a feature of a mark, the color or colors employed may be designated by means of conventional linings as shown in the following color chart:

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2.53 Transmission of drawings. Drawings transmitted to the Patent Office, other than those typed in accordance with rule 2.51(d), should be sent flat, protected by a sheet of heavy binder's board, or should be rolled for transmission in a suitable mailing tube to prevent mutilation or folding.

2.54 Informal drawings. A drawing not in conformity with the foregoing rules may be accepted for purpose of examination, but the drawing must be corrected or a new one furnished, as required, before the mark can be published or the application allowed. The necessary corrections will be made by the Patent Office upon applicant's request and at his expense. Substitute drawings will not be accepted unless they have been required by the Examiner or correction of the original drawing would require that the mark be substantially entirely redrawn.

2.55 Patent Office may make drawings. The Patent Office, at the request of applicants and at their expense, will make drawings if facilities permit.

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