Conditions of Registration
An individual or a corporation has a right to register a trade-mark under the United States law if the trade-mark for which registration is sought belongs to the applicant and is used by him:—
1st. In commerce among the several states;
2nd. Or, in commerce with foreign nations;
3rd. Or, in commerce with the Indian tribes;
Provided the owner of the trade-mark resides within the territory of the United States (which includes all territory under United States control), or has a manufacturing establishment situated in United States territory, or resides in any foreign country which affords, by treaty, similar privileges to citizens of the United States.
The law states, as a condition of validity, in explicit terms that the trade-mark must not only belong to the applicant, but must be "used by him." A trade-mark cannot be registered until it has actually been used on goods, and the use must be continued long enough, and must be of such a nature as to indicate a genuine intention on the part of the owner to adopt the trade-mark as a permanent accessory of his business.
The reason for this is evident. If any citizen could appropriate and sequester a trade-mark by paying the registration fee of ten dollars, without an intention of using it for its legitimate purpose, it does not take much imagination to foresee a Trade-Mark Trust, with most of the desirable trade-marks in the hands of a monopoly, to be farmed out at a profit.
To be Registrable A Trade-Mark Must Be:
1st. An arbitrary symbol, or word, or words, or a combination of a device and wording, not obviously descriptive of the commodity to which it is to be applied.
2nd. Unlike any other trade-mark, already in use, and applied to the same class of goods. It must not resemble the trade-mark of a competitor, or of a potential competitor, to such an extent that the buying public is likely to be deceived or confused by the resemblance.
3rd. Used in lawful trade.
4th. Of such a character that it may be affixed, printed upon, woven, sewed, branded or otherwise impressed upon the product with which it is used, or upon the package or container of the product.
A Trade-Mark Must Not Be:
1st. A portrait of a living individual unless the application for registration is accompanied by the written consent of the individual whose portrait is used.
2nd. Scandalous or immoral matter of any description.
3rd. The flag or coat of arms of the United States, or of any state, or of any municipality, or any of the insignia thereof.
4th. The insignia of the American National Red Cross Society.
5th. The flag or coat of arms of any foreign nation.
6th. Any design or picture which has been adopted by a fraternal society as its emblem.
7th. A design or wording identical with a registered or known trade-mark owned and in use by another, and appropriated to merchandise of the same descriptive qualities, or which so nearly resembles a registered or known trade-mark owned and used by another, and appropriated to merchandise of the same descriptive qualities, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers.
8th. Any mark which consists merely in the name of an individual, firm, corporation, or association, unless said name is written, printed, impressed or woven in some particular or distinctive manner, or is used in connection with a portrait of the individual.
9th. Any arrangement of words or devices descriptive of the goods with which they are used, or of the character or quality of such goods. In other words, a trade-mark must not be an advertisement in the ordinary sense of the word.
10th. Any geographical name or term.
11th. A misrepresentation of the quality, composition, character, origin, or nature of the commodity with which it is used.
