495.021 Registrability. - Florida Statutes

495.021 Registrability.

   (1) 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;

   (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;

   (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;

   (d) Consists of or comprises a name, signature, or portrait identifying a particular living individual, except by her or his written consent, or the name, signature, or portrait of a deceased President of the United States during the lifetime of his widow or her widower, if any, except by the written consent of the widow or widower;

   (e) Consists of a mark which:

   1. When used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them;

   2. When used on or in connection with the goods or services of the applicant, is primarily geographically descriptive of them;

   3. When used on or in connection with the goods or services of the applicant, is primarily geographically deceptively misdescriptive of them;

   4. Is primarily merely a surname; or

   5. Comprises any matter that, as a whole, is functional.

Except as expressly excluded in subparagraphs 3. and 5., nothing in this paragraph shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods or services. The department may accept as prima facie evidence that the mark has become distinctive, as used on or in connection with the applicant’s goods or services, proof of substantially exclusive and continuous use thereof as a mark by the applicant in this state or elsewhere for the 5 years before the date on which the claim of distinctiveness is made; 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. Registration shall not be denied solely on the basis of reservation or registration by another of a corporate name or fictitious name that is the same or similar to the mark for which registration is sought.

   (2) Subject to the provisions relating to the registration of trademarks and service marks, so far as they are applicable, collective and certification marks, including indications of regional origin, shall be registrable under this chapter, in the same manner and with the same effect as are trademarks and service marks, by persons, and nations, states, municipalities, and the like, exercising control over the use of the marks sought to be registered, even though not possessing an industrial or commercial establishment, and when registered they shall be entitled to the protection provided in this chapter in the case of trademarks and service marks. The Department of State may establish a separate register for such collective marks and certification marks.

History. s. 1, ch. 67-58; ss. 10, 35, ch. 69-106; s. 1, ch. 87-265; s. 2, ch. 90-222; s. 552, ch. 97-103; s. 3, ch. 2006-191.