1881, or the Act of February 20, 1905, or of a mark registered on the principal register provided by this Act and owned by the plaintiff shall be admissible in evidence and shall be prima facie evidence of registrant's exclusive right to use the registered mark in commerce on the goods or services specified in the certificate subject to any conditions or limitations stated therein, but shall not preclude the defendant from proving any legal or equitable defense which would have been available to him if the plaintiff's mark had not been registered.

(b) If the right to use the registered mark has become incontestable under section 15 hereof, the certificate shall be conclusive evidence 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 certificate subject to any conditions or limitations stated therein except when one of the following defenses is established:

(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 has been assigned and is being used, by or with the permission of the assignee, so as to misrepresent the source of the goods or services in connection with which the mark is used; or

(4) That the use by the defendant of the name, term, or device charged to be an infringement is a use other than as a trade-mark or service mark or the defendant's individual name in his own business, or of the individual name of anyone in privity with the defendant who uses his own name in his own business, or of a term or device which is merely descriptive of and used in good faith to describe to users the goods or services of the defendant, or of a term or device which is primarily descriptive of their geographic origin; or

(5) That the mark whose use by the defendant is charged as an infringement was adopted without knowledge of the registrant's prior use and has been continuously used by the defendant or those in privity with him from a date prior to the publication of the registered mark under subsection (a) or (c) of section 12 of this Act: Provided, however, That this defense shall apply only for the area in which such continuous prior use is proved.

SFC. 35. The several courts vested with jurisdiction of civil actions arising under this Act shall have power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to prevent the violation of any right of the registrant of a mark registered in the Patent Office. Any such injunction may include a provision directing the defendant to file with the court and serve on the plaintiff within thirty days after the service on the defendant of such injunction, or such extended period as the court may direct, a report in writing under oath setting forth in detail the manner and form in which the defendant has complied with the injunction. Any such injunction granted upon hearing, after notice to the defendant, by any district court of the United States, may be served on the parties against whom such injunction is granted anywhere in the United States where they may be found, and shall be operative and may be enforced by proceedings to punish for contempt, or otherwise, by the court by which such injunction was granted, or by any other United States district court in whose jurisdiction the defendant may be found.

The said courts shall have jurisdiction to enforce said injunction, as herein provided, as fully as if the injunction had been granted by the district court in which it is sought to be enforced. The clerk of the court or judge granting the injunction shall, when required to do so by the court before which application to enforce said injunction is made, transfer without delay to said court a certified copy of all papers on file in his office upon which said injunction was granted; and it shall be the duty of the clerks of such courts within one month after the filing of any action, suit, or proceeding arising under the provisions of this Act to give notice thereof in writing to the Commissioner setting forth in order so far as known the names and addresses of the litigants and the designating number or numbers of the registration or registrations upon which the action, suit, or proceeding has been brought, and in the event any other registration be subsequently included in the action, suit, or proceeding by amendment, answer, or other pleading, the clerk shall give like notice thereof to the Commissioner, and within one month after the decision is rendered, appeal taken or a decree issued the clerk of the court shall give notice thereof to the Commissioner, and it shall be the duty of the Commissioner on receipt of such notice forthwith to endorse the same upon the file wrapper of the said registration or registrations and to incorporate the same as a part of the contents of said file

wrapper; and for each notice required and furnished to the Commissioner in compliance herewith a fee of 50 cents shall be taxed by the clerk as costs of suit. SEC. 36. Whenever the plaintiff shall have established his right to relief in any civil action arising under this Act, he shal! be entitled (subject to the provisions of section 30) to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. The court shall assess such profits and damages or cause the same to be assessed under its direction. In assessing profils the plaintiff shall be required to prove defendant's sales, only; defendant must prove all elements of cost or deduction claimed. In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages not exceeding three times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not a penalty.

SEC. 37. In any action arising under this Act, in which the plaintiff shall have established his right to relief, the court may order that all labels, signs, prints, packages, wrappers, receptacles, and advertisements in the possession of the defendant, bearing the mark of the plaintiff or any reproduction, counterfeit, copy, or colorable imitation thereof, and all plates, molds, matrices, and other means of making the same, shall be delivered up and destroyed.

SEC. 38. In any action involving a registered mark the court may determine the right to registration, order the cancelation of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register with respect to the registrations of any party to the action. Decrees and orders shall be certified by the court to the Commissioner, who shall make appropriate entry upon the records of the Patent Office, and shall be controlled thereby.

SEC. 39. Any person who shall procure registration in the Patent Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, sha'l be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof.

SEC. 40. The district and territorial courts of the United States shall have original jurisdiction, the circuit courts of appeal of the United States and the United States Circuit Court of Appeals of the District of Columbia shall have appellate jurisdiction, of all actions arising under this Act, without regard to the amount in controversy or to diversity or lack of diversity of the citizenship of the parties.

SEC. 41. Writs of certiorari may be granted by the Supreme Court of the United States for the review of cases arising under this Act in the same manner as provided for in cases under the patent laws.

SEC. 42. The Commissioner shall make rules and regulations, not inconsistent with law, for the conduct of proceedings in the Patent Office under this Act.

TITLE VIII-IMPORTATION FORBIDDEN OF GOODS BEARING
INFRINGING MARKS OR NAMES

SEC. 42 (a) Any goods, whatever may be their source or origin, which shall bear any mark registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the princiral register provided by this Act, or any infringement of a mark so registered shall not be imported into the United States or admitted to entry at any customhouse of the United States unless the written consent of the registrant to such importation or entry be first had and obtained or unless such offending mark be removed or obliterated; and, if brought into the United 'States in violation of the provisions of this section, any person selling, offering for sale, or dealing in such goods shall be subject, at the suit of the registrant, to the liabilities for infringement provided in this Act and. in addition, be required to export or destroy such goods or to remove or obliterate such infringing mark therefrom, and such goods shall be subject to seizure and forfeiture for violation of the customs laws: Provided, That in order to aid the officers of customs in enforcing this paragraph, the registrant of the mark shall denosit in the Department of the Treasury a facsimile of the registration certificate, under such regulations as the Secretary of the Treasury shall prescribe.

(b) Any goods, whatever may be their source or origin, which shall bear the trade or commercial name or a simulation thereof of any domestic manufacturer or trader, or of any manufacturer or trader located in any foreign

country which by treaty, convention, or law affords similar privileges to citizens of the United States, shall not be imported into the United States or admitted to entry at any customhouse of the United States unless the written consent of such manufacturer or trader to such importation or entry be first had and obtained, or unless such offending name be removed or obliterated, and if brought into the United States in violation of the provisions of this section, any person may be enjoined from selling, offering for sale, dealing in, or advertising such goods and in addition be required to export or destroy such goods or to remove or obliterate such name therefrom, and the goods shall be subject to seizure and forfeiture for violation of the custom laws: Provided, That in order to aid the officers of customs in enforcing this paragraph, such domestic or foreign manufacturer or trader shall deposit in the Department of the Treasury a facsimile of his trade or commercial name, under such regulations as the Secretary of the Treasury shall prescribe.

(c) The owner, importer, or consignee of goods refused entry or seized under paragraph (a) or (b) of this section may have relief against the registrant, manufacturer, or trader by a summary proceeding in any United States court of original jurisdiction, in the district where such goods are held or where such registrant, manufacturer, or trader or a designated representative is an inhabitant or may be found, or, if the registrant is a foreigner and no designation of a representative has been filed, then in the District of Columbia, and after such notice and upon such proceedings as the court may direct the court may determine whether the plaintiff for any reason has the right to import such goods under the trade or commercial name or mark which they bear.

(d) A decree or order of such court for the plaintiff, upon being certified to the collector of the port where the goods are held, shall be warrant to such collector to release the goods from arrest or seizure or forfeiture under this section.

(e) An order or decree for either party, whether interlocutory or final, shall be appealable within thirty days, and the court making such order or decree may, in its discretion, suspend the operation thereof pending appeal.

TITLE IX-FALSE DESIGNATIONS OF ORIGIN AND FALSE DESCRIPTIONS FORBIDDEN

SEC. 44. (a) Any person who shall affix, apply, or annex, or use in connection with any goods or services or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

(b) Any goods marked or labeled in contravention of the provisions of this section shall not be imported into the United States or admitted to entry at any customhouse of the United States. The owner, importer, or consignee of goods refused entry at any customhouse under this section may have any recourse by protest or appeal that is given under the customs revenue laws or may have the remedy given by this Act in cases involving goods refused entry or seized.

TITLE X-INTERNATIONAL CONVENTIONS

SEC. 45. (a) The Commissioner shall keep a register of all marks communicated to him by the international bureaus provided for by the Conventions for the Protection of Industrial Property, trade-marks, trade and commercial names, and the repression of unfair competition to which the United States is or may become a party, and upon the payment of the fees required by such conventions and the fees herein prescribed may place the marks so communicated upon such register. This register shall show a facsimile of the mark or trade or commercial name; the name, citizenship, and address of the registrant; the number, date, and place of the first registration of the mark, including the dates on which application for such registration was filed and granted and the term of such registration; a list of goods or services to which the mark is applied as shown by the registration in

the country of origin, and such other data as may be useful concerning the mark. This register shall be a continuation of the register provided in section (a) of the Act of March 19, 1920.

(b) Persons who are nationals of, domiciled in, or have a bona fide and effective business or commercial establishment in any foreign country, which is a party to (1) the International Convention for the Protection of Industrial Property, signed at Paris on March 20, 1883; or (2) the General Inter-American Convention for trade-mark and Commercial Protection signed at Washington on February 20, 1929; or (3) any other convention or treaty relating to trade-marks, trade or commercial names, or the repression of unfair competition to which the United States is a party, shall be entitled to the benefits and subject to the provisions of this Act to the extent and under the conditions essential to give effect to any such conventions and treaties so long as the United States shall continue to be a party thereto, except as provided in the following paragraphs of this section.

(c) No registration of a mark in the United States by a person described in paragraph (b) of this section shall be perfected until such mark has been registered in the country of origin of the applicant, when such country makes the same requirement of nationals or residents of the United States 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 and, in the case of associations, the country in which the association has its domicile or its principal office.

(d) An application for registration of a mark under sections 1, 2, 3, 4, or 23 of this Act filed by a person described in paragraph (b) of this section who has previously duly filed an application for registration of the same mark in one of the countries described in paragraph (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 six 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, but use in commerce need not be alleged;

(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 foreign applicant to sue for infringement of his mark prior to the date on which his mark was registered in this country unless the registration is based on use in commerce. (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 certified copy of the application for or registration in the country of origin of the applicant.

(f) The registration of a mark obtained under the provisions of paragraphs (c), (d), and (e) of this section by a person described in paragraph (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 person described in paragraph (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 paragraph (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 against infringement of trade-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 paragraph (b) hereof.

TITLE XI-CONSTRUCTION AND DEFINITIONS

SEC. 46. In the construction of this Act, unless the contrary is plainly apparent from the context

The United States includes and embraces all territory which is under its jurisdiction and control.

The word "commerce" means all commerce which may lawfully be regulated by Congress.

The term "principal register" refers to the register provided for by sections 1 to 22 hereof, and the term "supplemental register" refers to the register provided for by sections 23 to 28 hereof.

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 terms "applicant" and "registrant" embrace the legal representatives and successors and assigns of such applicant or registrant.

The term "Commissioner" means the Commissioner of Patents.

The term "related company" means any person who is controlled by the registrant or applicant for registration in respect to the nature and quality of the goods or services in connection with which the mark is used.

The terms "trade name" and "commercial name" include individual names and surnames, firm names and trade names used by manufacturers, industrialists, merchants, agriculturists, and others to identify their businesses, vocations, or occupations; the names or titles lawfully adopted and used by persons, firms, associations, corporations, companies, unions, and any manufacturing, industrial, commercial, agricultural, or other organizations engaged in trade or commerce and capable of suing and being sued in a court of law.

The term "trade-mark” includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.

The term "service mark" means a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others and includes without limitation the marks, names, symbols, titles, designations, slogans, character names, and other distinctive features of radio or other advertising used in commerce.

The term "certification mark" means a mark indicating that the goods or service for which it is used are certified by the owner as to regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristic.

The term "mark" includes any trade-mark, service mark, or certification mark entitled to registration under this Act whether registered or not.

For the purposes of this Act a mark shall be deemed to be used in commerce (a) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto and the goods are sold or transported in commerce and (b) on services when used or displayed in the sale or advertising of services in commerce.

A mark shall be deemed to be "abandoned"

(a) When its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Discontinuance of use for two consecutive years shall be prima facie abandonment. When any course of conduct or the registrant, including acts of omisison as well as commission, causes the mark to lose its significance as an indication of origin.

The term "colorable imitation" includes any mark which so resembles a registered mark as to be likely to cause confusion or mistake or to deceive purchasers. The term "registered mark" means a mark registered in the United States Patent Office under this Act or under the Act of March 3, 1881, or the Act of February 20, 1905, or the Act of March 19, 1920. The phrase "marks registered in the Patent Office" means registered marks.

The term "Act of March 3, 1881," "Act of February 20, 1905," or Act of March 19, 1920," means the original Act as amended.

A "counterfeit" is a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.

Words used in the singular include the plural and vice versa.

The intent of this Act is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition entered into between the United States and foreign nations.