in "Industrial Property," a monthly review of the World Intellectual Property Organization (WIPO), Geneva, Switzerland. General Inter-American Convention for Trade-Mark and List of the States which are parties to the above conventions may be found in "Treaties in Force," a list of treaties and other international agreements in force on the first day of January of each year, compiled annually by the Office of the Legal Adviser, U.S. Department of State. (c) No registration of a mark in the United States by a person described in subsection (b) of this section shall be granted until such mark has been registered in the country of origin of the applicant, unless the applicant alleges use in commerce. For the purposes of this section, the country of origin of the applicant is the country in which he has a bona fide and effective industrial or commercial establishment, or if he has not such an establishment the country in which he is domiciled, or if he has not a domicile in any of the countries described in subsection (b) of this section, the country of which he is a national. (d) An application for registration of a mark under §§1, 3, 4, 23, or 44(e) of this Act filed by a person described in subsection (b) of this section who has previously duly filed an application for registration of the same mark in one of the countries described in subsection (b) shall be accorded the same force and effect as would be accorded to the same application if filed in the United States on the same date on which the application was first filed in such foreign country: Provided, That- (1) the application in the United States is filed within 6 months from the date on which the application was first filed in the foreign country; (2) the application conforms as nearly as practicable to the requirements of this Act, including a statement that the applicant has a bona fide intention to use the mark in commerce; (3) the rights acquired by third parties before the date of the filing of the first application in the foreign country shall in no way be affected by a registration obtained on an application filed under this subsection (d); (4) nothing in this subsection (d) shall entitle the owner of a registration granted under this section to sue for acts committed prior to the date on which his mark was registered in this country unless the registration is based on use in commerce. In like manner and subject to the same conditions and requirements, the right provided in this section may be based upon a subsequent regularly filed application in the same foreign country, instead of the first filed foreign application: Provided, That any foreign application filed prior to such subsequent application has been withdrawn, abandoned, or otherwise disposed of, without having been laid open to public inspection and without leaving any rights outstanding, and has not served, nor thereafter shall serve, as a basis for claiming a right of priority. Note: Section 3 of Public Law 333, 87th Cong., approved October 3, 1961, 75 Stat. 748, the provision which added the last paragraph above provided that "This Act shall take effect on the date when the Convention of Paris for the Protection of Industrial Property of March 20, 1883, as revised at Lisbon October 31, 1958, comes into force with respect to the United States and is applied only to applications thereafter filed in the United States by persons entitled to the benefit of said convention, as revised at the time of such filing." This provision became effective Jan. 4, 1962. (e) A mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register herein provided. The application therefor shall be accompanied by a certification or a certified copy of the registration in the country of origin of the applicant. The application must state the applicant's bona fide intention to use the mark in commerce, but use in commerce shall not be required prior to registration. (f) The registration of a mark under the provisions of subsections (c), (d), and (e) of this section by a person described in subsection (b) shall be independent of the registration in the country of origin and the duration, validity, or transfer in the United States of such registration shall be governed by the provisions of this Act. (g) Trade names or commercial names of persons described in subsection (b) of this section shall be protected without the obligation of filing or registration whether or not they form parts of marks. (h) Any person designated in subsection (b) of this section as entitled to the benefits and subject to the provisions of this Act shall be entitled to effective protection against unfair competition, and the remedies provided herein for infringement of marks shall be available so far as they may be appropriate in repressing acts of unfair competition. (i) Citizens or residents of the United States shall have the same benefits as are granted by this section to persons described in subsection (b) of this section. (Amended Oct. 3, 1961, 75 Stat. 748; Oct. 9, 1962, 76 Stat. 774; Nov. 16, 1988, 102 Stat. 3946.) TITLE X-CONSTRUCTION AND DEFINITIONS Sec. 45 (15 U.S.C. §1127). In the construction of this Act, unless the contrary is plainly apparent from the context- United States. The United States includes and embraces all territory which is under its jurisdiction and control. Commerce. The word "commerce" means all commerce which may lawfully be regulated by Congress. Principal Register, Supplemental Register. The term "principal register" refers to the register provided for by §§1 through 22 hereof, and the term "supplemental register" refers to the register provided for by §§23 through 28 thereof. Person, juristic person. The term "person" and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this Act includes a juristic person as well as a natural person. The term "juristic person" includes a firm, corporation, union, association, or other organization capable of suing and being sued in a court of law. The term "person" also 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 Act in the same manner and to the same extent as any non-governmental entity. Applicant, registrant. The terms "applicant" and "registrant" embrace the legal representatives, predecessors, successors and assigns of such applicant or registrant. Commissioner. The term "Commissioner" means the Related company. The term "related company" means any person whose use of a mark is controlled by the owner of the mark with respect to the nature and quality of the goods or services on or in connection with which the mark is used. Trade name, commercial name. The terms "trade name" and "commercial name" mean any name used by a person to identify his or her business or vocation. Trademark. The term "trademark" includes any word, name, symbol, or device, or any combination thereof-(1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this Act, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown. |