Catherine P. David S. Commissioner for Trademarks. TMEP Index. Snippet: Short Long. Sort : Relevance Section order. List: 10 25 50 75 Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. After five years of consecutive use from the date of federal registration, a mark may be declared incontestable. A Section 15 Declaration is not required A Section 15 Declaration is not necessary for maintaining ownership or rights under trademark law, and the failure to file the declaration does not result in the loss of any rights.
What does incontestable mean? A trademark owner seeking to make its mark incontestable must be able to demonstrate all of the following: No final legal decision has issued against the mark. No challenge to the mark is pending. A Section 15 Declaration describing the mark's use was filed on a timely basis. The mark is not and has not become generic. When does the issue arise? If the plaintiff can establish that the mark is incontestable, the mark will be presumed valid unless the defendant can establish one or more of the following: The registration or the incontestable right to use the mark was obtained by fraud.
The registrant has abandoned the mark. The mark is used to misrepresent the source of its goods or services for instance, use of the mark involves palming off. The infringing mark is an individual's name used in his or her own business, or is otherwise prohibited or reserved under the Lanham Act.
The infringing mark was used in commerce first—before the incontestable mark's registration. The infringing mark was registered first.
The mark is being used to violate the antitrust laws of the United States. How do you complete the Declaration? Choose 2. Some of these grounds include: 1 fraud; 2 abandonment; 3 false suggestion of a connection; 5 functionality; 6 genericness etc. Often, there is confusion between these two sections of the Trademark Act. Section 14 of the Trademark Act eliminates the two most common grounds for challenging trademarks, likelihood of confusion and descriptive grounds. To be able to assert the defense of incontestability in federal court actions, a registrant must file an Affidavit of Incontestability under Section 15 of the Trademark Act.
It should be noted that trademarks on the Supplemental Register are not entitled to file Affidavits of Incontestability. Moreover, if the mark you wish to cancel is on the Supplemental Register, than there are no restrictions pertaining to the grounds that can be used to challenge the mark. If you have questions pertaining to filing an Affidavit of Incontestability or questions regarding the grounds available to challenge a trademark, kindly contact our firm to schedule a courtesy consultation to discuss your trademark matter.
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