One who produces or deals in a particular thing or conducts a particular business may appropriate to his exclusive use, as a trademark, any form, symbol, or name which has not been so appropriated by another to designate the origin or ownership thereof; but he cannot exclusively appropriate any designation, or part of a designation, which relates only to the name, quality, or the description of the thing or business or the place where the thing is produced or the business is carried on.

(a) Registration of a mark under this article shall be effective for a term of 10 years from the date of registration and, if the mark is then still in use, upon application filed within six months prior to the expiration of such term, on a form to be furnished by the Secretary of State, the registration may be renewed for a like term. A renewal fee of $30, payable to the Secretary of State, shall accompany the application for renewal of the registration.

(b) A mark registration may be renewed for successive periods of 10 years in like manner.

(c) The Secretary of State shall notify registrants of marks under this article of the necessity of renewal within the year next preceding the expiration of 10 years from the date of registration, by writing to the last known address of the registrants.

(d) Any registration in the office of Secretary of State on January 1, 1981, shall expire one year after January 1, 1981, unless registered in accordance with the provisions of this article.

(e) All applications for renewals under this article, whether of registrations made under this article or of registrations effected under any prior act, shall include a statement that the mark is still in use in this state.

(f) The Secretary of State shall, within six months after January 1, 1981, notify all existing registrants of marks which were filed in the Secretary of State's office under previous acts or by informal registration, of the date of expiration of such registrations unless registered in accordance with the provisions of this article, by writing to the last known address of the registrants.

Any mark and its registration under this article 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 $30, 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 article 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.

The Secretary of State shall keep for public examination a record of all marks registered or renewed under this article.

The Secretary of State shall cancel from the register:

(1) After one year from January 1, 1981, all registrations under prior acts or informal registration which have not been registered in accordance with this article;

(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 article and not renewed in accordance with the provisions of Section 8-12-10;

(4) Any registration concerning which a court of competent jurisdiction shall find:

a. That the registered mark has been abandoned;

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; or

e. That the registered mark is so similar, as to be likely to cause confusion or mistake or to deceive, to a mark registered by another person in the United States patent and trademark office, prior to the date of the filing of the application for registration by the registrant hereunder, and not abandoned; provided, however, that should the registrant prove that he is the owner of a concurrent registration of his mark in the United States patent and trademark office covering an area including this state, the registration hereunder shall not be cancelled; or

(5) Any registration when a court of competent jurisdiction shall order cancellation thereof, on any ground.

(a) The following general classes of goods, services, and business are established for convenience of administration of this article, but not to limit or extend the applicant's or registrant's rights. A single application for registration of a mark may include any or all goods upon which, or services or business with which, the mark is actually being used comprised in a single class, but in no event shall a single application include goods, services, or business upon which the mark is being used which fall within different classes of goods, services, or business.

(b) The said classes are as follows:

Goods:

(1) Chemical products used in industry, science, photography, agriculture, horticulture, forestry; artificial and synthetic resins; plastics in the form of powders, liquids, or pastes, for industrial use; manures (natural and artificial); fire extinguishing compositions; tempering substances and chemical preparations for soldering; chemical substances for preserving foodstuffs; tanning substances; adhesive substances used in industry.

(2) Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; coloring matters, dyestuffs; mordants; natural resins; metals in foil and powder form for painters and decorators.

(3) Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring, and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices.

(4) Industrial oils and greases (other than oils and fats and essential oils); lubricants; dust laying and absorbing compositions; fuels (including motor spirit) and illuminants; candles, tapers, night-lights, and wicks.

(5) Pharmaceutical, veterinary, and sanitary substances; infants' and invalids' foods; plasters, material for bandaging; material for stopping teeth, dental wax, disinfectants, preparations for killing weeds and destroying vermin.

(6) Unwrought and partly wrought common metals and their alloys; anchors, anvils, bells, rolled and cast building materials; rails and other metallic materials for railway tracks; chains (except driving chains for vehicles); cables and wires (nonelectric); locksmiths' work; metallic pipes and tubes; safes and cash boxes; steel balls; horseshoes; nails and screws; other goods in nonprecious metal not included in other classes; ores.

(7) Machines and machine tools; motors (except for land vehicles); machine couplings and belting (except for land vehicles); large size agricultural implements; incubators.

(8) Hand tools and instruments; cutlery, forks, and spoons; side arms.

(9) Scientific, nautical, surveying, and electrical apparatus and instruments (including wireless), photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), lifesaving, and teaching apparatus and instruments; coin or counter-freed apparatus; talking machines; cash registers; calculating machines; fire extinguishing apparatus.

(10) Surgical, medical, dental, and veterinary instruments and apparatus (including artificial limbs, eyes, and teeth).

(11) Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply, and sanitary purposes.

(12) Vehicles; apparatus for locomotion by land, air, or water.

(13) Firearms, ammunition, and projectiles; explosive substances; fireworks.

(14) Precious metals and their alloys and goods in precious metals or coated therewith (except cutlery, forks, and spoons); jewelry, precious stones, horological and other chronometric instruments.

(15) Musical instruments (other than talking machines and wireless apparatus).

(16) Paper and paper articles, cardboard and cardboard articles; printed matter, newspaper and periodicals, books; bookbinding material; photographs; stationery, adhesive materials (stationery); artists' materials; paintbrushes; typewriters and office requisites (other than furniture); instructional and teaching material (other than apparatus); playing cards; printers' type and cliches (stereotype).

(17) Gutta-percha, india rubber, balata, and substitutes, articles made from these substances and not included in other classes; plastics in the form of sheets, blocks, and rods, being for use in manufacture; materials for packing, stopping, or insulating; asbestos, mica, and their products; hose pipes (nonmetallic).

(18) Leather and imitations of leather, and articles made from these materials and not included in other classes; skins, hides; trunks and travelling bags; umbrellas, parasols, and walking sticks; whips, harness, and saddlery.

(19) Building materials, natural and artificial stone, cement, lime, mortar, plaster, and gravel; pipes of earthenware or cement; road-making materials; asphalt, pitch, and bitumen; portable buildings; stone monuments; chimney pots.

(20) Furniture, mirrors, picture frames; articles (not included in other classes) of wood, cork, reeds, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum, celluloid, substitutes for all these materials, or of plastics.

(21) Small domestic utensils and containers (not of precious metals, or coated therewith); combs and sponges; brushes (other than paintbrushes); brush-making materials; instruments and material for cleaning purposes, steel wool; unworked or semiworked glass (excluding glass used in building); glassware, porcelain, and earthenware, not included in other classes.

(22) Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks; padding and stuffing materials (hair, kapok, feathers, seaweed, etc.); raw fibrous textile materials.

(23) Yarns, threads.

(24) Tissues (piece goods); bed and table covers; textile articles not included in other classes.

(25) Clothing, including boots, shoes, and slippers.

(26) Lace and embroidery, ribands and braid; buttons, press buttons, hooks and eyes, pins and needles; artificial flowers.

(27) Carpets, rugs, mats, and matting; linoleums and other materials for covering existing floors; wall hangings (nontextile).

(28) Game and playthings; gymnastic and sporting articles (except clothing); ornaments and decorations for Christmas trees.

(29) Meats, fish, poultry, and game; meat extracts; preserved, dried, and cooked fruits and vegetables; jellies, jams; eggs, milk, and other dairy products; edible oils and fats; preserves, pickles.

(30) Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes; flour, and preparations made from cereals; bread, biscuits, cakes, pastry, and confectionary, ices; honey, treacle; yeast, baking powder; salt, mustard, pepper, vinegar, sauces, spices; ice.

(31) Agricultural, horticultural, and forestry products and grains not included in other classes; living animals; fresh fruits and vegetables; seeds; live plants and flowers; foodstuffs for animals, malt.

(32) Beer, ale, and porter; mineral and aerated waters and other nonalcoholic drinks; syrups and other preparations for making beverages.

(33) Wines, spirits, and liqueurs.

(34) Tobacco, raw or manufactured; smokers' articles; matches.

Services:

(35) Advertising and business.

(36) Insurance and financial.

(37) Construction and repair.

(38) Communication.

(39) Transportation and storage.

(40) Material treatment.

(41) Education and entertainment.

(42) Miscellaneous.

Business:

(43) Agriculture, forestry, and fisheries.

(44) Mining.

(45) Construction.

(46) Manufacturing, nondurable goods.

(47) Manufacturing, durable goods.

(48) Transportation, communications, and other public utilities.

(49) Wholesale trade, nondurable goods.

(50) Wholesale trade, durable goods.

(51) Retail trade - lumber and building materials, hardware, nurseries and garden stores, and mobile home dealers.

(52) Retail trade - department, variety, miscellaneous general merchandise, grocery, dairy products, retail bakery, and food stores.

(53) Retail trade - motor vehicle dealers, auto and home supply stores, gasoline service stations, and miscellaneous vehicle dealers.

(54) Retail trade - apparel, accessory, and shoe stores.

(55) Retail trade - furniture, home furnishings, household appliances, T.V. and radio stores.

(56) Retail trade - eating and drinking places, drugstores, and liquor stores.

(57) Retail trade — sporting goods, bicycles, and hobby stores.

(58) Retail trade - book, stationery, jewelry, sewing, needlework, and piece-goods stores.

(59) Retail trade - mail-order houses, vending machine operators, and direct selling establishments, fuel and ice dealers, and retail florists.

(60) Retail trade - miscellaneous.

(61) Finance, insurance, and real estate.

(62) Business and repair services.

(63) Personal services.

(64) Entertainment and recreation services.

(65) Professional and related services.

(66) Public administration.

(67) Miscellaneous.

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 of this article, 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.

Subject to the provisions of Section 8-12-19, any person who shall:

(1) Use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this article in connection with a business, or with the sale, offering for sale, or advertising of any goods or services, and such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services or the sponsorship of such business; or

(2) 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 business or 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 8-12-18, except that under subdivision (2) of this section the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.

Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark registered under this article, or a mark valid at common law, including a trade name valid at common law, shall be a ground for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.

(a) Any owner of a mark registered under this article 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, and to pay the costs of the action; and 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.

(b) The enumeration of any right or remedy in this article shall not affect a registrant's right to prosecute under any penal law of this state.

Nothing in this article shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.

Any person or corporation engaged in manufacturing, bottling, or selling soda water, mineral or aerated waters, cider, ginger ale, milk, cream, beer, ale, or other beverages in bottles, siphons, fountains, or kegs with his or its name or other mark or device branded, stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, siphons, fountains, or kegs, or on the boxes used in such business, may file in the office of the judge of probate of the county in which his, or its, place of business is situated, and also in the office of the Secretary of State, a description of the name, mark, or device so used and cause such description and a notice of its filing to be printed once a week for three successive weeks in a newspaper published in the county in which such notice is filed.

Any person or corporation who fills with soda water, mineral or aerated waters, ginger ale, milk, cream, beer, other beverages, medicines, compounds, or mixtures, any bottle, box, siphon, fountain, or keg marked or distinguished by any name, mark, or device of which a description shall have been filed and published as provided in Section 8-12-20, or who defaces, erases, obliterates, covers up, or otherwise removes or conceals any such name, mark, or device, or who sells, buys, gives, receives, or otherwise disposes of or traffics in the same without the written consent of, unless the same shall have been purchased from, the person or corporation whose mark or device shall be upon the bottle, box, siphon, fountain, or keg so filled, trafficked in, used, or dealt with, must be punished on conviction for the first offense by imprisonment in the county jail or at hard labor for the county for not less than 10 days nor more than one year or fined $.50 for each such bottle, box, siphon, fountain, or keg so filled, sold, used, disposed of, bought, or trafficked in, or by both such fine and imprisonment, and for each subsequent offense, by imprisonment for not less than 20 days nor more than one year or by a fine of not less than $1 nor more than $5 for each such bottle, box, siphon, fountain, or keg so filled, sold, used, disposed of, bought, or trafficked in, or by both such fine and imprisonment at the discretion of the jury.

The use by any person or corporation, other than the person or corporation whose name, mark, or device may be, or may have been, upon the same, without the written consent of, or purchase from, the owner of any bottle, box, siphon, fountain, or keg, a description of the name, mark, or device whereon shall have been filed and published as provided in Section 8-12-20, for the sale of soda water, mineral, or aerated water, ginger ale, milk, cream, beer, ale, or other beverages, any article of merchandise, medicines, compounds, or preparations, or for the furnishing of such similar beverages to customers or the buying, selling, using, disposing of, or trafficking in any such bottles, boxes, siphons, fountains, or kegs by any person or corporation other than the person or corporation owning the name, mark, or device thereon of such owner, without his written consent, or the having by any junk dealer, or dealer in secondhand articles, possession of any such bottles, siphons, boxes, fountains, or kegs without the written consent of the owner, shall be presumptive evidence of the unlawful use or purchase of or traffic in such bottles, boxes, siphons, fountains, or kegs.

Whenever any person, corporation, or their agent shall make oath before any judge that he has reason to believe, and does believe, that any of his bottles, boxes, siphons, fountains, or kegs, a description of the name, marks, or devices whereon has been filed and published as provided in Section 8-12-20, are being unlawfully used, filled, or had by any person or corporation manufacturing or selling soda, mineral, or aerated waters, cider, ginger ale, milk, cream, beer, ale, or other beverages, or that any junk dealer, dealer in secondhand articles, vendor of bottles, or any person or corporation has any such bottles, boxes, siphons, fountains, or kegs in his possession or secreted in any place, such judge must issue a search warrant to discover and seize such property, whereupon such proceedings must be had as in other cases in which search warrants have issued.

(a) Any person who defaces, or permits the same to be done, with intent to defraud any trademark, or other identifying mark, on any automobile motor, other motor, guns, electrical equipment, radios, motor vehicles, refrigerators, furniture, household or office equipment, or any other personal property, when such property is encumbered with a mortgage, conditional sale contract, or other lien, shall be guilty of a misdemeanor, shall be fined on conviction not less than $25 nor more than $500 and may be imprisoned in the county jail or sentenced to hard labor for not more than six months.

(b) Any person, other than the absolute owner of the property while the same is free and clear of mortgages, retention of title contracts or other encumbrances, found in possession of such property under any claim of right with knowledge that the property has been defaced by a person or persons with intent to defraud after the trademarks or other identifying marks have been defaced, shall be presumed to be guilty of defacing such marks, and shall be punished as provided in this section unless the person in possession overcomes the presumption by clear and convincing proof.

It shall be unlawful for any person, firm, or corporation, other than the owner thereof, to purchase, offer to purchase, sell, offer to sell, or transport for sale any bottle, can, crate, or other container upon which or in which, appears in permanent form, the name, trade name, or trademark of the owner thereof, in which milk or milk products are sold and delivered with the understanding at the time of such sale and delivery of the contents thereof that such bottle, can, crate, or container is the property of the person, firm, or corporation whose name, trade name, or trademark is designated in permanent form thereon or therein; provided, that this section shall not apply to the manufacturers of such bottles, cans, crates, or like containers, nor shall it apply to purchasers at execution sales or other judicial sales; provided further, that any person, firm, or corporation who may sell or otherwise dispose of his, their, or its business in bulk may transfer his, their, or its bottles, cans, crates, or containers to his, their, or its vendee by bill of sale; provided further, that the provisions of this section shall not apply to bottle exchanges which are operated by or patronized by the owners of such bottles, cans, crates, or like containers.

Whenever the name, trade name, or trademark of any person, firm, or corporation appears in permanent form upon, or in, any milk bottle, can, crate, or container of any kind in which milk or milk products are sold and delivered, such fact shall create a rebuttable presumption that such person, firm, or corporation is the owner thereof.

The use, possession, or control by any person, firm, or corporation engaged in the business of buying, selling, renting, receiving, storing, transporting, or dealing in secondhand merchandise or junk of any milk bottle, can, crate, carton, or container which has marked thereon or therein, in permanent form, the name of any dairy, dairyman, milk producer, milk distributor, milk vendor, or milk dealer shall be prima facie evidence of the violation of Section 8-12-40.

(a) The Commissioner of Agriculture and Industries shall enforce the provisions of this article.

(b) The provisions of Article 2, Chapter 2 of Title 2 shall be applicable to this article.

Any person violating any provision of this article, shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, and may also be sentenced to hard labor for not more than six months.

As used in this article, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:

(1) APPLICANT. The person filing an application for registration of a mark under this article, his legal representative, successors, or assigns.

(2) MARK. Any trade name, trademark, or service mark entitled to registration under this article whether registered or not.

(3) PERSON. Any individual, firm, partnership, corporation, association, union, or other organization.

(4) REGISTRANT. The person to whom the registration of a mark under this article is issued, his legal representative, successors, or assigns.

(5) SERVICE MARK. Any word, name, symbol, character, or device, or any combination thereof and the distinctive feature of radio, television, or other advertising adopted and used by a person to identify services rendered or offered by him and to distinguish them from the services of others.

(6) TRADEMARK. Any word, name, symbol, character, design, drawing, 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.

(7) TRADE NAME. A word, name, symbol, character, design, drawing, device, or any combination thereof adopted and used by a person to identify his business (including vocation, occupation, or profession), and distinguish it from the business of others.

(8) USED. A mark shall be deemed to be 'used' in this state:

a. On goods or their containers or the displays associated therewith or on the tags or labels affixed thereto when such goods are sold or otherwise distributed in the state;

b. In connection with services when it is used or displayed in the sale or advertising of services and the services are rendered in this state; and

c. In connection with a business when it identifies the business to persons in this state.

(a) A mark by which the goods, services, or business of any applicant for registration may be distinguished from the goods, services, or business of others shall not be registered if it:

(1) Consists of or comprises immoral, deceptive, or scandalous matter;

(2) Consists of or comprises matter which may disparage or falsely suggest a connection with a person, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute;

(3) Consist of or comprises the flag or coat of arms or other insignia of the United States, of any state or municipality or of any foreign nation, or any simulation thereof;

(4) Consists of, comprises or includes the name, signature, or portrait of any living individual, except with his written consent;

(5) Consists of a mark which:

a. When applied to the goods, services, or business of the applicant, is merely descriptive or deceptively misdescriptive of them; or

b. When applied to the goods, services, or business of the applicant is primarily geographically descriptive or deceptively misdescriptive of them; or

c. Is primarily merely a surname;

(6) Consists of or comprises a mark which so resembles a mark registered in this state or a mark previously used in this state by another and not abandoned, as to be likely, where applied to the goods, services, or business of the applicant, to cause confusion or mistake or to deceive. Such a mark may be registered when the prior registrant or assignee, or the previous user of the mark gives his written consent, and the parties identify by affidavit their respective separate geographic markets and state that neither plans to expand into the other's market.

(b) Neither the issuance of a certificate of incorporation to a domestic corporation or a certificate of authority to a foreign corporation or a certificate of registration to a foreign limited partnership, nor the reservation or registration of a corporate name bestows any rights of ownership in a mark, and the issuance to another of a certificate of incorporation, a certificate of authority, a certificate of registration of a foreign limited partnership, a certificate of reservation of corporate name, or a certificate of registration of corporate name shall not serve as the basis for refusing registration of a mark.

(a) Subject to the limitations set forth in this article, any person who adopts and uses a mark 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:

(1) The name and business address of the person applying for such registration and, if a corporation, the state of incorporation;

(2) A description of the goods, services, or business in connection with which the mark is used and the mode or manner in which the mark is used in connection with such goods, services, or business and the class in which such goods, services, or business fall;

(3) The date when the mark was first used anywhere and the date when it was first used in this state by the applicant or his predecessor in business; and

(4) A statement that the applicant is the owner of the mark and that no other person 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.

(b) Every application under this section shall be signed and verified by the applicant or by a member of the firm or an officer of the corporation or association applying.

(c) Every application under this section shall be accompanied by a specimen or facsimile of such mark in triplicate.

(d) Every application for registration under this section shall be accompanied by a filing fee of $30, payable to the Secretary of State.

(a) Upon compliance by the applicant with the requirements of this article, 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, services, or business and a description of the goods, services, or business on which the mark is used, a reproduction of the mark, the registration date, and the term of the registration.

(b) Any certificate of registration issued by the Secretary of State under the provisions of this section 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.