« iepriekšējāTurpināt »
The Patent Office is a part of the Department of Agricul. ture. There is a Commissioner of Patents, and applications for any purpose connected with patents must be made to him.
No inventor can have a patent if his invention has been in public use or on sale more than a year in Canada, previous to his application, with the consent of the inventor. Nor if a patent for the same exists in another country more than twelve months previous to application in Canada. If, during said twelve months, any person begins to manufacture the article in Canada, he shall have the right to continue the same. Applicant must elect a domicil in Canada for the purposes of this patent, and declare the same in his petition. The article to be sold under this patent must be made in Canada, and not imported into it; and the manufacture must begin within two years from the granting of the patent; but these two years may be extended by the Commissioner.
The patent right is granted for five, ten, or fifteen years, at the option of the applicant.
By the common law a merchant or manufacturer is entitled to the exclusive use of a “trade mark” to designate his goods, provided he has used it so long that it has become generally recognized as his.
The trade-mark may consist of words, letters, figures, or drawings, or a combination of two or more of them.
It must, however, indicate only the origin or ownership of the goods to which it is applied, and not be descriptive of their character, quality, or composition.
Thus, for example, a miller may mark his flour with the figure of an eagle or with the name of his mill, and these marks will after a time be recognized as indicating that the flour so marked is made by him or at his mill.
But he cannot appropriate to his exclusive use such words as "snow white,” “superfine," "family flour,” or any other descriptive term, as any other person manufacturing a similar article has a right to describe it by any appropriate language.
So the name of the place where a manufacturer carries on business cannot be so appropriated as to prevent others in the same place from using it in connection with their goods.
No one will, however, be permitted to represent his goods as the goods of another, by imitating the latter's labels, descriptions, or peculiar methods of putting up his goods, even if the latter do not strictly constitute a trade-mark; and in all cases of this kind it is enough for the plaintiff to show that the imitation is sufficiently close as to deceive the public, although there be differences in the details.
If, however, the plaintiff is himself defrauding the public by falsely describing the character, quality, or composition of his goods, or when the articles themselves are injurious in their character, he can claim no assistance from a court of equity.
A trade-mark may be sold with the business with which it is connected or the factory where the goods are made to which it is applied. In the settlement of partnership affairs, or in connection with the sale of the good will of a business, it is often an item of great value.
(The following rules are derived from the U. S. Statutes of 1905, as amended by those of 1907.)
The trade-mark department at Washington is a branch of the Patent Office. All business relating to trade-marks should be carried on in writing with the “ Commissioner of Patents,” and remittances should be made by money order, check or draft to his order in advance. Money paid in excess of charges will be refunded.
A trade-mark may be registered by any person, firm, corporation or association, domiciled within the territory of the United States, or residing or located in any foreign country which has treaty agreements with the United States.
No mark which distinguishes the goods of one owner from the goods of another will be refused registration, unless such mark comprises immoral or scandalous matter, or represents the flag or coat of arms of the United States or of any State, municipality or foreign nation, or any emblem of a fraternal society.
If a trade-mark is identical with one now in use, or so nearly alike to one in use that it will tend to confuse the public, registration will be refused. No trade-mark which consists merely in the name of an individual, firm, corporation or association, not written, printed, impressed, or woven in some particular or distinctive manner or in association with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, will be registered. No portrait of a living individual may be registered as a trademark, except by the consent of such individual, evidenced by an instrument in writing. Nothing, however, shall prevent the registration of any mark which has been in actual and exclusive use as a trade-mark for ten years next preceding February 20, 1905. The part underscored is the most important amendment of recent years, as by it, trade-marks which, by reason of being descriptive, etc., could not heretofore be registered, may now be registered as valid trade-marks, provided they have been in use for the period as specified.
Registration of a trade-mark previously registered in a foreign country, may be had in the United States, provided the application is filed in this country within four months from the date on which the application was first filed in such foreign country. Where an applicant for a trade-mark does not reside in the United States, he must designate by a notice in writing, filed in the Patent Office, some person residing within the United States on whom process or notice of proceedings may be served.
In general, an application for a trade-mark consists of (a) a petition; (b) a statement of the name, residence, citizenship of the party applying ; (c) the length of time the trade-mark has been used; (d) the class of merchandise to which the trade-mark. is appropriated; (e) description of the trade-mark itself; (f) where applied to the goods; (g) a drawing of the trade-mark as actually used on the goods, signed by applicant or attorney; (h) five specimens of facsimiles of the trade-mark as actually used on the goods. The application must be written on one side of the paper only, and accompanied by a written declaration under oath, that the applicant believes himself to be the owner of the trade-mark, 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 either in the identical form or any such other resemblance thereof as might be calculated to deceive, and that such trade-mark is used in commerce among the several States or with foreign nations or with the Indian Tribes, and that the description, drawing and specimens or facsimiles truly represent the trade-mark sought to be registered.
The drawing must be made in India ink on pure white, smooth paper equal to two-sheet Bristol board in thickness. The sheets on which a drawing is made must be exactly 10 by 15 inches.
A marginal line should be drawn around this page, one inch fron the edge, leaving an enclosure 8 by 13 inches in which all the drawing and writing must be made. The name of the owner or attorney must be placed on the lower right-hand corner inside the margin. Drawings must be sent flat. The Patent Office, at the request of applicants, will furnish drawings at cost.
The statements in the application may be amended to correct informalities or to avoid objections made by the Office, but all such amendments must be made on sheets of paper separate from the papers previously filed, and specifying exactly the amendments to be made.
When application is made for the registration of a trade-mark, the Commissioner causes an examination to be made, and if the examiner finds the applicant entitled to his trade-mark, the Commissioner has it published at least once in the official Gazette of the Patent Office. Any opposition to the trade-mark should be made within thirty days from this publication. If no opposition is made, the Commissioner will issue a certificate of registration. Should the Commissioner decide not to register the proposed trade-mark, or should there be opposition to its registration, he will immediately notify the applicant that registration has been refused and give the reasons for doing so.
An appeal may be taken from the decision of the examiner denying the registration of a trade-mark to the Commissioner, and from the Commissioner to the Court of Appeals for the District of Columbia.
In case of conflicting applications for registration of a trademark, or in any dispute as to the right to use the same, the Office will declare an interference, and the proceedings for interference between applications for patents will be followed as nearly as practicable. Any person who believes he would be damaged by the registration of a trade-mark can oppose the same, by filing in duplicate a written notice of opposition verified by the person under oath. Any person believing himself injured by the registration of a trade-mark can apply to have such trade-mark canceled, such application to be in duplicate under oath.
The term of a trade-mark is twenty years, with privilege of renewal for the same term on an application made not more than six months before its expiration. Those trade-marks granted before April 1, 1905, remain in force for the original term granted, and then may be renewed for 20-year terms as with original applications.
Trade-marks may be sold and assigned like the good-will of a business, but the sale or assignment must be made by instrument in writing duly acknowledged according to the laws of the country or State in which the same is executed. The assignment must be recorded within three months from the date.
A register of a trade-mark must give notice to the public that a trade-mark is registered, either by affixing thereon the words “Registered in U.S. Patent Office,” or “ Reg. U. S. Pat. Off.,” or, when that cannot be done, by putting same words on a label placed on the packages or receptacles. No suit can be brought for infringement of a trade-mark unless this public notice is given, or unless proof is offered that the defendant was duly notified of infringement and continued to use the same after such notice.
The Circuit and Territorial Courts of the United States and the Supreme Court of the District of Columbia have original jurisdiction, and the Circuit Courts of Appeal of the L’nited States and the Court of Appeals of the District of Columbia have appellate jurisdiction, of all suits at law or in equity representing trade-marks registered under this act, without regard to the amount in controversy. Writs, of certiorari follow the rules provided for patent cases. Recovery on a judgment shall include profit accruing to defendant and damages sustained by complainant. The several courts may grant injunctions pending suits, and may increase said judgment not exceeding three times the amount of the verdict, and may order copies and representations of infringing trade-marks destroyed.
In assessing profits, the plaintiff is required to prove the defendant's sales only. The defendant, on the other hand, must prove all elements of cost which are claimed.
Imported goods bearing foreign trade-marks injuriously imitating United States trade-marks shall be refused entry at all United States custom-houses; and to prevent their entry, each owner of a trade-mark should lodge with the Commissioner of Patents a copy and description of it, copies of which will be forwarded to each collector or other proper officer of customs.
The principal fees connected with such registration are as follows:
$10.00 On filing each application for renewal of registration, . On filing notice of opposition to registration,
On appeal from the examiner in charge to the Commissioner of Patents,
15.00 For recording every assignment, agreement, power of attorney, or other paper, of 300 words or less,
Do., of more than 300 words and less than 1,000 words,
TO THE COMMISSIONER OF PATENTS :
The undersigned presents herewith a drawing and five specimens (or facsimiles) of his trade-mark, and requests that the same, together with the accompanying statement and declaration, may be registered in the United States Patent Office in accordance with the law in such cases made and provided. Dated: