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(e) Five specimens (or facsimiles, when, from the mode of applying or affixing the trade-mark to the goods, specimens can not be furnished) of the trade-mark as actually used upon the goods.

(f) A fee of $15.*t (Sec. 1, 33 Stat. 724, 35 Stat. 628, sec. 1, 41 Stat. 533, sec. 4, 46 Stat. 155; 15 U.S.C. 81, 121)

5.23 English language required. The petition, the statement, and the declaration must be in the English language and written on one side of the paper only.**

5.24 Name and signature must be uniform. The name of the applicant will appear in the certificate of registration precisely as it is signed to the statement of the application, and, therefore, the signature to the statement must be the correct signature of the applicant, and the name of the applicant wherever it appears in the papers of the application will be made to agree with the name as signed to the statement.*†

5.25 Information prior to publication confidential. No information will be given, prior to publication under § 5.40, without authority of the applicant, respecting the filing of an application for the registration of a trade-mark by any person, or the subject matter thereof, unless it shall, in the opinion of the Commissioner, be necessary to the proper conduct of business before the office.*t

5.26 Registrations. A trade-mark registered under the Act of March 3, 1881 (21 Stat. 502), may be registered under the Act of February 20, 1905, but the application for such registration will be subject to examination in the same manner as other applications filed under said Act of February 20, 1905.**

5.27 Foreign filing date. An application for registration of a trade-mark under the Act of February 20, 1905, as amended, filed in this country by any person who has previously regularly filed in any foreign country which, by treaty, convention, or law, affords similar privileges to the citizens of the United States an application for registration of the same trade-mark, shall be accorded the same force and effect as would be accorded to the same application if filed in this country on the date on which application for registration of the same trade-mark was first filed in such foreign country: Provided, That such application be filed in this country within 6 months from the date on which the application was first filed in such foreign country.*t (Sec. 4, 33 Stat. 725, 49 Stat. 1539; 15 U.S.C. 84 and Sup.)

5.28 Process or notice of proceedings affecting right of ownership. Every applicant for registration of a trade-mark, who is not domiciled within the United States, shall, in the statement, before the issuance of the certificate of registration, designate some person residing within the United States on whom process or notice of proceedings affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner may be served. This notice shall be indorsed upon the file wrapper of the application. Such an applicant for renewal of a trade-mark must file such a designation in writing.*t (Sec. 3, 33 Stat. 725; 15 U.S.C. 83)

**For statutory and source citations, see note to § 5.1.

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5.29 Serving of notice. In proceedings relating to an application, or to a registration under the Act of February 20, 1905, it shall be deemed sufficient to serve notice upon the applicant, registrant, or representative, by leaving a copy of the process or notice of proceedings addressed to him at the last address of which the Commissioner of Patents has been notified.*t (Sec. 3, 33 Stat. 725; 15 U.S.C. 83)

5.30 Option of applicant. A trade-mark may, at the option of the applicant, be registered on a single application, for any or all goods comprised in a single class of merchandise, provided the particular description of goods be stated, and provided that the mark has been actually used upon all of the goods specified.*t (Sec. 2, 34 Stat. 169; 15 U.Š.C. 131)

5.31 Declaration of ownership. The application must be accompanied by a written declaration, verified by the applicant, or by a member of the firm, or by an officer of the corporation or association applying, to the effect that he believes himself, or the firm, corporation, or association in whose behalf he makes the declaration, to be the owner of the trade-mark sought to be registered, and that no other person, firm, corporation, or association, to the best of his knowledge and belief, has the right to use the trade-mark in the United States, either in the identical form or any such near resemblance thereto as might be calculated to deceive; that such trademark is used in commerce among the several States, or with foreign nations, or with Indian tribes; that the description and drawing truly represent the trade-mark sought to be registered; that the specimens (or facsimiles) show the mark as actually used upon the goods; and that the facts set forth in the statement are true.*† (Sec. 2, 33 Stat. 724, 35 Stat. 627; 15 U.S.C. 82)

5.32 Allegation of actual use. Where application is made under section 5 of the Act of February 20, 1905 (33 Stat. 725; 15 U.S.C. 85), on the ground that the mark has been in actual and exclusive use as a trade-mark by the applicant, or his predecessors from whom he derived title, for 10 years next preceding February 20, 1905, the applicant shall allege in the statement such actual use of the mark as a trade-mark by himself or his predecessors, or by those from whom title to the same is derived, for the period specified, and that, to the best of his knowledge and belief, such use has been exclusive.

If the application is made under the last paragraph of section 5 of the Act of February 20, 1905, the statement shall identify the registered mark and allege use of the mark on the goods of the application for at least one year.*t (Sec. 5, 33 Stat. 725, sec. 1, 34 Stat. 1251, 36 Stat. 918, 37 Stat. 649, sec. 9, 41 Stat. 535, 43 Stat. 647; 15 U.S.C. 85)

5.33 Declaration as to filing foreign application. If the applicant for registration under the Act of February 20, 1905, as amended, resides or is located in a foreign country, the statement required, unless the application be presented under the provisions of section 3 of the Act of May 4, 1906, shall also set forth that the trade-mark

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**For statutory and source citations, see note to § 5.1.

has been registered by the applicant, or that an application for the registration thereof has been filed by him in the foreign country in which he resides or is located, and shall give the date of such registration and of the application therefor. In such cases it shall not be necessary to state that the mark has been used in commerce with the United States or among the States thereof.

If the application be presented under the provisions of section 3 of the Act of May 4, 1906, the statement must state that the applicant has a manufacturing establishment within the territory of the United States and that the goods upon which the trade-mark is used are the product of such establishment.*t (Sec. 2, 33 Stat. 724, 35 Stat. 627, sec. 3, 34 Stat. 169; 15 U.S.C. 82, 132)

5.34 Execution of declaration before proper authority. The declaration may be made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, chargé d'affaires, consul, or commercial agent holding commission under the Government' of the United States, or before any notary public, judge, or magistrate having an official seal and authorized to administer oaths in the foreign country in which the applicant may be, whose authority shall be proved by the certificate of a diplomatic or consular officer of the United States, the declaration being attested in all cases, in this and other countries, by the proper official seal of the officer before whom the same is made, except that no acknowledgment may be taken before any attorney appearing in the case. When the person before whom the declaration is made is not provided with a seal, his official character shall be established by competent evidence, as by a certificate of a clerk of a court of record, or other proper officer having a seal.*† (Sec. 2, 33 Stat. 724, 35 Stat. 627; 15 U.S.C. 82)

5.35 Substitute declaration. Amendment of the declaration will not be permitted. If that filed with the application be faulty or defective, a substitute declaration must be filed.**


5.36 Requisites and form. (a) The drawing must be made upon pure white paper of a thickness corresponding to two-sheet Bristol board. The surface of the paper must be calendered and smooth. India ink alone must be used, to secure perfectly black and solid lines.

(b) The size of a sheet on which a drawing is made must be exactly 8 by 13 inches. Three-fourths of an inch from its edges a single marginal line is to be drawn, leaving the "sight" precisely 62 by 112 inches. Within this margin all work and signatures must be included. One of the shorter sides of the sheet should be regarded as its top.

(c) All drawings must be made with the pen only. Every line and letter, signatures included, must be absolutely 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.

**For statutory and source citations, see note to § 5.1.

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(d) The name of the proprietor of the trade-mark, signed by himself or by his attorney of record, must be within the marginal lines, but in no instance should it encroach upon the drawing.

(e) When the view is longer than the width of the sheet, the sheet should be turned on its side.

(f) Drawings transmitted to the office should be sent flat, protected by a sheet of heavy binder's board, or should be rolled for transmission in a suitable mailing tube. They should never be folded.

(g) An agent's or attorney's stamp, or advertisement, or written address will not be permitted upon the face of a drawing, within or without the marginal line.

(h) Where color is a material feature of a mark as used, the color or colors employed may be illustrated in the drawing by means of the conventional linings as shown in the following color chart for draftsmen:

[blocks in formation]

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[blocks in formation]

*† (Sec. 1, 33 Stat. 724, 35 Stat. 628; 15 U.S.C. 81)

5.37 Drawings furnished at cost. The office, at the request of applicants, will furnish the drawings at cost.**


5.38 Prosecution of applications. All complete applications for registration shall be considered, in the first instance, by the examiner in charge of trade-marks as if filed under the Act of February 20, 1905, as amended, unless otherwise specified in the application. Whenever, on examination of an application, registration is refused for any reason whatever, the applicant will be notified thereof. The reasons for such refusal will be stated, and such information and references will be given as may be useful in aiding the applicant to judge of the propriety of further prosecuting his application. If the examiner shall find the application unregisterable under the Act of 1905, but registerable under the Act of 1920, he shall so advise the applicant; and the applicant shall then notify the office whether he will prosecute such application under the 1905 Act or will accept registration under the 1920 Act. Such notification shall be entered on the file and further proceedings governed accordingly.** (Sec. 6, 33 Stat. 726, sec. 2, 34 Stat. 1252; 15 U.S.C. 86)

5.39 Merits; objections stated. The examination of an application and the actions thereon will be directed throughout to the merits, and in each letter the examiner shall state or refer to all his objections.*+

5.40 Publication in Official Gazette. If, on examination of an application for the registration of a trade-mark under the Act of

**For statutory and source citations, see note to § 5.1.

February 20, 1905, as amended, it shall appear that the applicant is entitled to have his trade-mark registered under the provisions of that law, the mark will be published in the Official Gazette at least once. Such publication shall be at least 30 days prior to the date of passing the application to registration.

If no notice of opposition be filed within 30 days after such publication, the applicant or his attorney will be duly notified of the allowance of his application, and a certificate of registration will be issued as provided in § 5.69. Marks registered under section 1 (b) of the Act approved March 19, 1920, may be published when registered.

The weekly issue closes on Thursday, and the certificates of registration of that issue bear date as of the fourth Tuesday thereafter.*+ (Sec. 6, 33 Stat. 726, sec. 2, 34 Stat. 1252; 15 U.S.C. 86)


5.41 Correction of informalities. The statement may be amended to correct informalities, or to avoid objections made by the office, or for other reasons arising in the course of examination, but no amendments to the description or drawing of the trade-mark or to the description of the goods will be permitted unless warranted by something in the specimens (or facsimiles) as originally filed, or supported by additional specimens (or facsimiles) and a supplemental affidavit alleging that such amended mark was in actual use at the time the application was filed, or that the mark was in actual use on all of the goods added by the amendment at the time the application was filed.*t

5.42 Form. In every amendment the exact word or words to be stricken out or inserted in the statement must be specified and the precise point indicated where the erasure or insertion is to be made. All such amendments must be on sheets of paper separate from the papers previously filed, and written on but one side of the paper.

Erasures, additions, insertions, or mutilations of the papers and records must not be made by the applicant or attorney.*t

5.43 Amendment to amendments. When an amendatory clause is amended, it must be wholly rewritten, so that no interlineation or erasure shall appear in the clause, as finally amended, when the application is passed to issue. If the number or nature of the amendments shall render it otherwise difficult to consider the case, or to arrange the papers for printing or copying, the examiner may require the entire statement to be rewritten.*t

5.44 Jurisdiction after allowance. After allowance, the examiner will exercise jurisdiction over an application only by special authority from the Commissioner.

Amendments may be made after the allowance of an application, if the case has not been printed, on the recommendation of the examiner, approved by the Commissioner, without withdrawing the case from issue.*t

5.45 Papers not returned by office. After the completion of the application, the office will not return the papers for any purpose

**For statutory and source citations, see note to § 5.1.

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