§1092. Publication; not subject to opposition; cancellation

Marks for the supplemental register shall not be published for or be subject to opposition, but shall be published on registration in the Official Gazette of the Patent and Trademark Office. Whenever any person believes that he is or will be damaged by the registration of a mark on this register he may at any time, upon payment of the prescribed fee and the filing of a petition stating the ground therefor, apply to the Commissioner to cancel such registration. The Commissioner shall refer such application to the Trademark Trial and Appeal Board which shall give notice thereof to the registrant. If it is found after a hearing before the Board that the registrant is not entitled to registration, or that the mark has been abandoned, the registration shall be canceled by the Commissioner. However, no final judgment shall be entered in favor of an applicant under section 1051(b) of this title before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to section 1057(c) of this title.

(July 5, 1946, ch. 540, title II, §24, 60 Stat. 436 ; Aug. 8, 1958, Pub. L. 85–609, §1(d), 72 Stat. 540 ; Oct. 9, 1962, Pub. L. 87–772, §14, 76 Stat. 773 ; Jan. 2, 1975, Pub. L. 93–596, §1, 88 Stat. 1949 ; Nov. 16, 1988, Pub. L. 100–667, title I, §122, 102 Stat. 3943 .)

Prior Provisions

Act Mar. 19, 1920, ch. 104, §2, 41 Stat. 534 .

Amendments

1988-Pub. L. 100–667 struck out "verified" after "filing of a", substituted "is not entitled to registration," for "was not entitled to register the mark at the time of his application for registration thereof," struck out "is not used by the registrant or" after "that the mark", and inserted provision that no final judgment be entered before mark is registered if applicant cannot prevail without establishing constructive use.

1975-Pub. L. 93–596 substituted "Patent and Trademark Office" for "Patent Office".

1962-Pub. L. 87–772 provided for payment of the prescribed fee and the filing of a verified petition.

1958-Pub. L. 85–609 substituted provisions requiring the Commissioner to refer applications to the Trademark Trial and Appeal Board for provisions which required referral to the examiner in charge of interferences.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–667 effective one year after Nov. 16, 1988, see section 136 of Pub. L. 100–667, set out as a note under section 1051 of this title.

Effective Date of 1975 Amendment

Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of this title.

Effective Date of 1958 Amendment

For effective date and applicability of amendment by Pub. L. 85–609, see section 3 of Pub. L. 85–609, set out as a note under section 1067 of this title.

Repeal and Effect on Existing Rights

Repeal of inconsistent provisions, effect of this chapter on pending proceedings and existing registrations and rights under prior acts, see notes set out under section 1051 of this title.

Transfer of Functions

For transfer of functions of other officers, employees, and agencies of Department of Commerce, with certain exceptions, to Secretary of Commerce, with power to delegate, see Reorg. Plan No. 5 of 1950, §§1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5, Government Organization and Employees.

Reorganization Plan No. 5 of 1950

Amendment by Pub. L. 85–609 as subject to Reorganization Plan No. 5 of 1950, see note set out under section 1067 of this title.