NORTH CAROLINA GENERAL ASSEMBLY
1967 SESSION

CHAPTER 1007
HOUSE BILL 310

AN ACT TO AMEND ARTICLE I OF CHAPTER 80 OF THE GENERAL STATUTES OF NORTH CAROLINA RELATING TO REGISTRATION AND PROTECTION OF TRADEMARKS.

The General Assembly of North Carolina do enact:

Section 1.  Article 1 of Chapter 80 of the General Statutes of North Carolina is hereby amended by rewriting said article in its entirety to read as follows:
"Article 1.
"Trademark Registration Act.
"§ 80-1.  Definitions.
"(A)	The term 'trademark' as used herein means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others.
"(B)	The term 'service mark' as used herein 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.
"(C)	The term 'mark' as used herein includes any trademark or service mark entitled to registration under this Act whether registered or not.
"(D)	The term 'person' as used herein means any individual, firm, partnership, corporation, association, union or other organization.
"(E)	The term 'applicant' as used herein embraces the person filing an application for registration of a trademark under this Act, his legal representatives, successors or assigns.
"(F)	The term 'registrant' as used herein embraces the person to whom the registration of a trademark under this Act is issued, his legal representatives, successors or assigns.
"(G)	For the purposes of this Act, a mark shall be deemed to be 'used' in this State (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 such goods are sold or otherwise distributed in the State, and (b) on services when it is used or displayed in the sale or advertising of services and the services are rendered in this State.
"§ 80-2.  Registrability. A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it
(a)	consists of or comprises immoral, deceptive or scandalous matter; or
(b)	consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or
(c)	consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof; or
(d)	consists of or comprises the name, signature or portrait of any living individual, except with his written consent; or
(e)	consists of a mark which (1) when applied to the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them, or (2) when applied to the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them, or (3) is primarily merely a surname; provided, however, that nothing in this subsection (e) shall prevent the registration of a mark used in this State by the applicant which has become distinctive of the applicant's goods or services. The Secretary of State may accept as evidence that the mark has become distinctive, as applied to the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this State or elsewhere for the five years preceding the date of the filing of the application for registration; or
(f)	consists of or comprises a mark which so resembles a mark registered in this State or a mark or trade name previously used in this State by another and not abandoned, as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive.
"§ 80-3.  Application for Registration. Subject to the limitations set forth in this Act, any person who uses a mark, or any person who controls the nature and quality of the goods or services in connection with which a mark is used by another, in this State may file in the office of the Secretary of State, on a form to be furnished by the Secretary of State, an application for registration of that mark setting forth, but not limited to, the following information:
(a)	the name and business address of the person applying for such registration; and, if a corporation, the state of incorporation;
(b)	the goods or services in connection with which the mark is used and the mode or manner in which the mark is used in connection with such goods or services and the class in which such goods or services fall;
(c)	the date when the mark was first used anywhere and the date when it was first used in this State by the applicant, his predecessor in business or by another under such control of applicant; and
(d)	a statement that the applicant is the owner of the mark and that no other person except as identified by applicant has the right to use such mark in this State either in the identical form thereof or in such near resemblance thereto as might be calculated to deceive or to be mistaken therefor.
"The application shall be signed and verified by the applicant or by a member of the firm or an officer of the corporation or association applying.
"The application shall be accompanied by a specimen or facsimile of such mark in triplicate.
"The application for registration shall be accompanied by a filing fee of ten dollars ($10.00), payable to the Secretary of State.
"§ 80-4.  Certificate of Registration. Upon compliance by the applicant with the requirements of this Act, the Secretary of State shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the Secretary of State and the Seal of the State, and it shall show the name and business address and, if a corporation, the state of incorporation, of the person claiming ownership of the mark, the date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this State, the class of goods or services and a description of the goods or services on which the mark is used, a reproduction of the mark, the registration date and the term of the registration.
"Any certificate of registration issued by the Secretary of State under the provisions hereof or a copy thereof duly certified by the Secretary of State shall be admissible in evidence as competent and sufficient proof of the registration of such mark in any action or judicial proceedings in any court of this State.
"§ 80-5.  Duration and Renewal. Registration of a mark hereunder shall be effective for a term of 10 years from the date of registration and shall be renewable for successive terms of 10 years upon application filed within six months prior to the expiration of any term. A renewal fee of ten dollars ($10.00), payable to the Secretary of State, shall accompany the application for renewal of the registration.
"The Secretary of State shall notify registrants of marks hereunder of the necessity of renewal within the year next preceding the expiration of the 10 years from the date of registration, by writing to the last known address of the registrants.
"Any registration in force on the date on which this Act shall become effective shall expire 10 years from the date of the registration or of the last renewal thereof hereunder or two years after the effective date of this Act, whichever is later, and may be renewed by filing an application with the Secretary of State and paying the aforementioned renewal fee therefor within six months prior to the expiration of the registration. Until so expired, such registration shall be subject to and shall be entitled to the benefits of the provisions of this Act.
"All applications for renewals under this Act, whether of registrations made under this Act or of registrations effected under any prior Act, shall be filed with the Secretary of State on a form to be furnished by him specifying the information called for by Section 80-3 and shall include a statement that the mark is still in use in this State.
"The Secretary of State shall notify each registrant of marks under previous Acts of the date of expiration of such registrations unless renewed in accordance with the provisions of this Act, by writing to the last known address of the registrants at least six months prior to the date of expiration thereof under the provisions of this Act.
"§ 80-6.  Assignment. Any mark and its registration hereunder shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be recorded with the Secretary of State upon the payment of a fee of ten dollars ($10.00) payable to the Secretary of State who, upon recording of the assignment, shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under this Act shall be void as against any subsequent purchaser for valuable consideration without notice, unless it is recorded with the Secretary of State within three months after the date thereof or prior to such subsequent purchase.
"§ 80-7.  Records. The Secretary of State shall keep for public examination all assignments recorded under Section 80-6 and a record of all marks registered or renewed under this Act.
"§ 80-8.  Cancellation. The Secretary of State shall cancel from the register:
"(1)	after two years from the effective date of this Act, all registrations under prior Acts which are more than 10 years old and not renewed in accordance with this Act;
"(2)	any registration concerning which the Secretary of State shall receive a voluntary request for cancellation thereof from the registrant or the assignee of record;
"(3)	all registrations granted under this Act and not renewed in accordance with the provisions hereof;
"(4)	any registration concerning which a court of competent jurisdiction shall find
(a)	that the registered mark has been abandoned or has become incapable of serving as a mark;
(b)	that the registrant is not the owner of the mark;
(c)	that the registration was granted improperly;
(d)	that the registration was obtained fraudulently.
"(5)	any registration when a court of competent jurisdiction shall order cancellation thereof.
"§ 80-9.  Classification. The following general classes of goods and services are established for convenience of administration of this Act, but not to limit or extend the applicant's or registrant's rights, and a single application for registration of a mark may include any or all goods upon which, or services for which, the mark is actually being used comprised in a single class, but in no event shall a single application include goods or services upon or for which the mark is being used which fall within different classes of goods or services. The Secretary of State shall have the right to amend the classes herein established to conform the same to the classification established for the United States Patent Office as from time to time amended.
"The said classes are as follows:
"(a)	Goods:
1.	Raw or partly prepared materials.
2.	Receptacles.
3.	Baggage, animal equipments, portfolios, and pocketbooks.
4.	Abrasives and polishing materials.
5.	Adhesives.
6.	Chemicals and chemical compositions.
7.	Cordage.
8.	Smokers' articles, not including tobacco products.
9.	Explosives, firearms, equipments, and projectiles.
10.	Fertilizers.
11.	Inks and inking materials.
12.	Construction materials.
13.	Hardware and plumbing and steam-fitting supplies.
14.	Metals and metal castings and forgings.
15.	Oils and greases.
16.	Protective and decorative coatings.
17.	Tobacco products.
18.	Medicines and pharmaceutical preparations.
19.	Vehicles.
20.	Linoleum and oiled cloth.
21.	Electrical apparatus, machines, and supplies.
22.	Games, toys, and sporting goods.
23.	Cutlery, machinery, and tools, and parts thereof.
24.	Laundry appliances and machines.
25.	Locks and safes.
26.	Measuring and scientific appliances.
27.	Horological instruments.
28.	Jewelry and precious-metal ware.
29.	Brooms, brushes, and dusters.
30.	Crockery, earthenware, and porcelain.
31.	Filters and refrigerators.
32.	Furniture and upholstery.
33.	Glassware.
34.	Heating, lighting, and ventilating apparatus.
35.	Belting, hose, machinery packing, and non-metallic tires.
36.	Musical instruments and supplies.
37.	Paper and stationery.
38.	Prints and publications.
39.	Clothing.
40.	Fancy goods, furnishings, and notions.
41.	Canes, parasols, and umbrellas.
42.	Knitted, netted and textile fabrics, and substitutes therefor.
43.	Thread and yarn.
44.	Dental, medical, and surgical appliances.
45.	Soft drinks and carbonated waters.
46.	Foods and ingredients of foods.
47.	Wines.
48.	Malt beverages and liquors.
49.	Distilled alcoholic liquors.
50.	Merchandise not otherwise classified.
51.	Cosmetics and toilet preparations.
52.	Detergents and soaps.
"(b)	Services:
100.	Miscellaneous.
101.	Advertising and business.
102.	Insurance and financial.
103.	Construction and repair.
104.	Communications.
105.	Transportation and storage.
106.	Material treatment.
107.	Education and entertainment.
"§ 80-10.  Fraudulent Registration. Any person who shall for himself, or on behalf of any other person, procure the filing or registration of any mark in the office of the Secretary of State under the provisions hereof, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.
"§ 80-11.  Infringement. Subject to the provisions of Section 80-13, any person who shall
(a)	use in this State without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this Act in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
(b)	reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in conjunction with the sale or other distribution in this State of such goods or services; shall be liable to a civil action by the owner of such registered mark for any or all of the remedies provided in Section 80-12, except that under subsection (b) hereof the registrant shall not be entitled to recover profits or damages or any penalty unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.
"§ 80-12.  Civil Remedies. Any owner of a mark registered under this Act may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale; such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case, be delivered to an officer of the court, or to the complainant, to be destroyed; and such court having granted any such injunction or ordered any such payment shall require the defendants to pay to said owner a penalty of not less than two hundred dollars ($200.00) and not more than one thousand dollars ($1,000.00) in addition to such other relief, provided that such court shall have found that said owner shall have registered his mark prior to the date said defendants shall have first used the infringing mark in this State.
The enumeration of any right or remedy herein shall not affect a registrant's right to prosecute under any penal law of this State.
"§ 80-13.  Common Law Rights. Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.
"§ 80-14.  If any provision hereof, or the application of such provision to any person or circumstance is held invalid, the remainder of this Act shall not be affected thereby."
Sec. 2.  This Act shall not affect pending litigation.
Sec. 3.  All laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.
Sec. 4.  This Act shall be in full force and take effect on January 1, 1968.
In the General Assembly read three times and ratified, this the 29th day of June, 1967.