T.M.E.P. § 1002.03
Establishing Entitlement Under a Treaty
Executive summary:
This document contains one section of the Trademark Manual of Examining Procedure (the "TMEP"), Fourth Edition (April 2005). This page was last updated in June 2007. You may return to one either the section index, or to the key word index. If you wish to search the TMEP, simply use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the TMEP in the pop-up list.
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1002.03 Establishing Entitlement Under a Treaty
In a §44 application, the examining attorney must confirm that (1) both the applicant's country of origin and the country where the applicant has filed the application or obtained registration are parties to a treaty or agreement with the United States (or that they extend reciprocal rights to United States nationals by law), and (2) the specific benefit that the applicant is claiming under §44 (i.e., the right to a priority filing date under §44(d) and/or the right to registration under §44(e)) is provided for under the treaty or agreement. See TMEP §§1002.01 and TMEP §1002.02.
To determine whether a particular country has a treaty with the United States that provides for the benefit that the applicant is claiming under §44, examining attorneys should consult Appendix B of this manual. Appendix B lists the members of the Paris Convention, Inter-American Convention, Buenos Aires Convention, World Trade Organization, European Community and certain countries entitled to reciprocal treatment under other international agreements, as well as websites where examining attorneys can obtain updated information about these treaties or agreements.
If a qualified applicant filed an application or obtained a registration in a country that is a member of the Paris Convention, Inter-American Convention, World Trade Organization or European Community, the applicant can claim the benefits of either §44(d) or §44(e), if the applicant meets the requirements of those sections. A qualified applicant may also file under either §44(e) or §44(d) based on an application filed or registration obtained in Taiwan. On the other hand, if the applicant filed an application or obtained a registration in a country that is a member of the Buenos Aires Convention, the applicant may seek registration under §44(e), but may not obtain a priority filing date under §44(d). See Appendix B for additional information.
In the case of agreements not covered in Appendix B , an applicant can establish its eligibility for the benefits of §44 by providing evidence of statutes or agreements establishing reciprocity between the United States and the relevant country. Examining attorneys may also consult sources such as Trademarks Throughout the World and World Trademark Law and Practice, available to Office employees in the Trademark Law Library, for information about the trademarks laws of foreign countries.
See TMEP §1002.01 for information about how the examining attorney should handle an application in which the applicant is not entitled to registration under §44(e), and TMEP §1002.02 for information about how the examining attorney should handle an application in which the applicant is not entitled to priority under §44(d).