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Title: Marks that can be registered-USA

1. Marks that can be registered-USA

Only certain marks can be registered under the Lanham Act. The U.S. Patent and Trademark Office will review each application for trademark registration to determine whether the mark is registerable under the Act. To make this determination, the U.S.P.T.O. will see if the mark falls into one of the following prohibited categories:

Confusingly Similar Marks: The U.S.P.T.O. will not allow registration of marks that so resemble a preexisting mark when use of the proposed mark is likely to cause confusion, mistake, or deception. If this situation exists, the circumstances should be examined for the possibility of trademark infringement. Note that because common law marks have limited geographic scope, it is possible that the existence of a common law mark may prevent the federal registration of a mark without prohibiting its use.

 Merely Descriptive or Misdescriptive Marks: The category of prohibited, merely descriptive marks can be broken down as follows:

Descriptive of the goods (i.e., SMALL for a subcompact automobiles;

Descriptive of a quality or feature of the goods (i.e, FAST for automobiles);

Geographically descriptive (i.e., DETROIT for automobiles); and

Descriptive of an individual by being primarily merely a surname (i.e., SMITH for automobiles).

Marks that are deceptively misdescriptive are also prohibited on the Principal Register. Merely descriptive marks can be registered on the Supplemental Register (see description below under types of applications), assuming the mark is not generic and is not disqualified under any other criteria. In addition, it is possible for descriptive marks to "become distinctive" by achieving secondary meaning. Secondary meaning indicates that although the mark is on its face descriptive of the goods or services, consumers recognize the mark as having a source indicating function. Descriptive marks and secondary meaning are described further in the BitLaw discussion of the strength of marks.

Immoral, Deceptive, or Scandalous Marks;

Marks that disparages or falsely suggest a relationship with a person (living or dead) an institution, a belief, or a national symbol, including any mark which brings them into contempt or disrepute;

Geographically misdescriptive marks on liquors;

Marks that constitute a government's flag or coat of arms;

Marks that consist of a name, portrait or signature identifying a particular living person without their consent; or

Marks that consist of a name, portrait, or signature of a U.S. President during the life of the President's widow, without her/his consent.



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