TMEP 1205.01(a)(ii): First Use On or Before December 8, 2005 – Grandfather Clause

October 2017 Edition of the TMEP

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1205.01(a)(ii)    First Use On or Before December 8, 2005 – Grandfather Clause

Registration of the Red Crescent, the Third Protocol Emblem, or the designation "Red Crescent" or "Third Protocol Emblem" need not be refused where, in an application under §1 of the Trademark Act, 15 U.S.C. §1051, the applicant claims a date of first use in commerce on or before December 8, 2005, if the goods and services would not appear in time of armed conflict to confer the protections of the Geneva Conventions. 18 U.S.C. §706a. However, registration should be refused under §2(a) and §§1 and 45 of the Act if the goods or services are of a type typically offered as emergency relief or assistance in times of armed conflict. Such goods or services may include, but are not limited to, medical or first-aid assistance, religious and charitable services, clothing, and food items. The refusals can be withdrawn if the applicant amends the identification to indicate that the goods/services are not offered as emergency relief or assistance in time of armed conflict.

When examining specimens of use for such designations, the examining attorney should also consider issuing a refusal under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127, on the ground that the subject matter would not be perceived as a trademark or, in the case of services, §§1, 2, 3, and 45 of the Act, 15 U.S.C. §§1051, 1052, 1053, and 1127, as appropriate. See TMEP §1202.