ENGROSSED
Senate Bill No. 230
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning, Hunter,
Kessler, Ross, Schoonover, Snyder, White, Buckalew, Deem and
Kimble.)
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[Originating in the Committee on the Judiciary;
reported January 27, 1998.]
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A BILL to amend and reenact section one, article two, chapter
forty-seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to trademarks; and
providing that the term "trademark" includes certain indicia
of the United States olympic committee and international
olympic committee.
Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter forty-seven of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. TRADEMARKS IN GENERAL.
§47-2-1. Definitions.
As used in this article:
(1) The term "trademark" means any word, name, symbol, or
device or any combination thereof used by a person to identify and
distinguish the goods of such person, including a unique product,
from those manufactured and sold by others, and to indicate the
source of the goods, even if that source is unknown. The term
"trademark" also means the words, names, symbols, emblems, signs,
insignias, or any combination thereof, of the United States olympic
committee or the international olympic committee.
(2) The term "service mark" means any word, name, symbol, or
device or any combination thereof used by a person, to identify and
distinguish the services of one person, including a unique service,
from the services of others, and to indicate the source of the
services, even if that source is unknown. Titles, character names
used by a person, and other distinctive features of radio or
television programs may be registered as service marks
notwithstanding that they, or the programs, may advertise the goods
of the sponsor.
(3) The term "mark" includes any trademark or service mark,
entitled to registration under this article whether registered or
not.
(4) The term "trade name" means any name used by a person to
identify a business or vocation of such person.
(5) The term "person" and any other word or term used to designate the applicant or other party entitled to a benefit or
privilege or rendered liable under the provisions of this article
includes a juristic person as well as a natural person. The term
"juristic person" includes a firm, partnership, corporation, union,
association or other organization capable of suing and being sued
in a court of law.
(6) The term "applicant" embraces the person filing an
application for registration of a mark under this article, and the
legal representatives, successors or assigns of such person. (7) The term "registrant" as used herein embraces the person
to whom the registration of a mark under this article is issued,
and the legal representatives, successors or assigns of such
person.
(8) The term "use" means the bona fide use of a mark in the
ordinary course of trade, and not made merely to reserve a right in
a mark. For the purposes of this article, a mark shall be deemed
to be in use: (A) On goods when it is placed in any manner on the
goods or other containers or the displays associated therewith or
on the tags or labels affixed thereto, or if the nature of the
goods makes such placement impracticable, then on documents
associated with the goods or their sale, and the goods are sold or
transported in commerce in this 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.
(9) A mark shall be deemed to be "abandoned" when either of
the following occurs:
(A) When its use has been discontinued with intent not to
resume such use. Intent not to resume may be inferred from
circumstances. Nonuse for two consecutive years shall constitute
prima facie evidence of abandonment.
(B) When any course of conduct of the owner, including acts of
omission as well as commission, causes the mark to lose its
significance as a mark.
(10) The term "secretary" means the secretary of the state or
the designee of the secretary charged with the administration of
this article.
(11) The term "dilution" means the lessening of the capacity
of registrant's mark to identify and distinguish goods or services,
regardless of the presence or absence of: (A) Competition between
the parties; or (B) likelihood of confusion, mistake or deception.