TMEP 906 Federal Registration Notice

from Trademark Manual of Examining Procedure (TMEP) April 2013

TMEP 906 Federal Registration Notice

TMEP 906.01  Foreign Countries That Use Registration Symbol ®

TMEP 906.02 Improper Use of Registration Symbol

TMEP 906.03 Informing Applicant of Apparent Improper Use

TMEP 906.04 Fraud

TMEP 906 Federal Registration Notice

The owner of a mark registered in the United States Patent and Trademark USPTO may give notice that the mark is registered by displaying with the mark the words “Registered in United States Patent and Trademark Office,” the abbreviation “Reg. U.S. Pat. & Tm. Off.,” or the letter R enclosed within a circle, ®. 15 U.S.C. §1111.

The registration symbol should be used only on or in connection with the goods or services that are listed in the registration.

The federal registration symbol may not be used with marks that are not actually registered in the USPTO. Even if an application is pending, the registration symbol may not be used until the mark is registered.

Registration in a state of the United States does not entitle a person to use the federal registration notice. Du-Dad Lure Co. v. Creme Lure Co., 143 USPQ 358 (TTAB 1964).

A party may use terms such as “trademark,” “trademark applied for,” “TM” and “SM” regardless of whether a mark is registered. These are not official or statutory symbols of federal registration.

906.01 Foreign Countries That Use Registration Symbol ®

In addition to the United States, several countries recognize use of the symbol ® to designate registration. When a foreign applicant’s use of the symbol on the specimens is based on a registration in a foreign country, the use is appropriate.

The following foreign countries use the ® symbol to indicate that a mark is registered in their country:

· Belgium

· China (People’s Republic)

· Costa Rica

· Denmark

· Ecuador

· Germany

· Guatemala

· Hungary

· Luxembourg

· Netherlands

· Nicaragua

· Poland

· Sweden

TMEP 906.02 Improper Use of Registration Symbol

Improper use of the federal registration symbol that is deliberate and intended to deceive or mislead the public is fraud. See TMEP §906.04. However, misunderstandings about use of federal registration symbols are more frequent than occurrences of actual fraudulent intent. Common reasons for improper use of the federal registration symbol that do not indicate fraud are:

· Mistake as to the requirements for giving notice (confusion often occurs between notice of trademark registration, which may not be given until after registration, and notice of claim of copyright, which must be given before publication by placing the notice © on material when it is first published);

· Inadvertence in not giving instructions (or adequate instructions) to the printer, or misunderstanding or voluntary action by the printer;

· The mistaken belief that registration in a state or foreign country gives a right to use the registration symbol (see Brown Shoe Co., Inc. v. Robbins, 90 USPQ2d 1752 (TTAB 2009); Du-Dad Lure Co. v. Creme Lure Co., 143 USPQ 358 (TTAB 1964));

· Registration of a portion of the mark (see Coca-Cola Co. v. Victor Syrup Corp., 218 F.2d 596, 104 USPQ 275 (C.C.P.A. 1954));

· Registration of the mark for other goods (see Duffy-Mott Co., Inc. v. Cumberland Packing Co., 424 F.2d 1095, 165 USPQ 422 (C.C.P.A. 1970), aff’g 154 USPQ 498 (TTAB 1967); Meditron Co. v. Meditronic, Inc., 137 USPQ 157 (TTAB 1963));

· A recently expired or cancelled registration of the subject mark (see Rieser Co., Inc. v. Munsingwear, Inc., 128 USPQ 452 (TTAB 1961));

· Another mark to which the symbol relates on the same label (see S.C. Johnson & Son, Inc. v. Gold Seal Co., 90 USPQ 373 (Comm’r Pats. 1951)).

See also Sauquoit Paper Co., Inc. v. Weistock, 46 F.2d 586, 8 USPQ 349 (C.C.P.A. 1931); Dunleavy Co. v. Koeppel Metal Furniture Corp., 134 USPQ 450 (TTAB 1962), aff’d, 328 F.2d 939, 140 USPQ 582 (C.C.P.A. 1964); Radiant Mfg. Corp. v. Da-Lite Screen Co., 128 USPQ 132 (TTAB 1961); Tobacco By-Products & Chemical Corp. v. Smith, 106 USPQ 293 (Comm’r Pats. 1955), modified 243 F.2d 188, 113 USPQ 339 (C.C.P.A. 1957).

TMEP 906.03 Informing Applicant of Apparent Improper Use

If a specimen in an application shows the federal registration symbol used with the mark that is the subject of the application, or with any portion of this mark, the examining attorney must determine from USPTO records whether or not such matter is registered. If it is not, and if the symbol does not appear to indicate registration in a foreign country (see TMEP §906.01), the examining attorney must point out to the applicant that the records of the USPTO do not show that the mark with which the symbol is used on the specimens is registered, and that the registration symbol may not be used until a mark is registered in the USPTO. The examining attorney should not require any explanation or comment from the applicant concerning the use of the symbol in relation to the mark.

TMEP 906.04 Fraud

Improper use of the federal registration symbol, ®, that is deliberate and intends to deceive or mislead the public or the USPTO is fraud. See Copelands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295 (Fed. Cir. 1991); Wells Fargo & Co. v. Lundeen & Associates, 20 USPQ2d 1156 (TTAB 1991).

The examining attorney may not issue a refusal of registration based on fraud. If it appears to the examining attorney that fraud on the USPTO has been committed, the examining attorney must follow the procedures outlined in TMEP §720.

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