Chap. 303.—An ACT to amend and re-enact Sections 1455, 1456, 1457, 1458,
1459, 1460, 1461, 1462 and 1463 of the Code of Virginia, relating to trade-
marks, labels, terms, designs, devices and forms of advertising, and pro-
viding for and regulating the registration and use of the same, and to amend
the Code of Virginia by adding thereto a new section numbered Section
1458-a, prescribing what shall not be so registered. [H B 507]

Approved March 28, 1938

1. Be it enacted by the General Assembly of Virginia, That sec-
tions fourteen hundred and fifty-five, fourteen hundred and fifty-six,
fourteen hundred and fifty-seven, fourteen hundred and fifty-eight,
fourteen hundred and fifty-nine, fourteen hundred and sixty, fourteen
hundred and sixty-one, fourteen hundred and sixty-two, and fourteen
hundred and sixty-three of the Code of Virginia, be amended and re-
enacted, and that the Code of Virginia be further amended by adding
thereto a new section numbered fourteen hundred and fifty-eight-a,
so that the said amended sections and the said new section shall read
as follows:

Section 1455. (a) The following terms hereafter used or referred
to in this chapter, consisting of sections fourteen hundred and fifty-five
to fourteen hundred and sixty-three, both inclusive, of the Code of
Virginia, shall have the following meaning unless a different meaning
clearly appears from the context:

(1) “Trade-mark” shall mean and include label, trade-mark, term,
design, device or form of advertisement.

(2) “Person” shall mean and include an individual, firm, associa-
tion, corporation or union of workingmen.

(3) “Merchandise” shall mean and include goods, wares, mer-
chandise or other products of labor.

(b) Whenever any person has heretofore adopted and used, or
shall hereafter adopt and use, any trade-mark for the purpose of
designating, making known, or distinguishing any merchandise as hav-
ing been manufactured, made, produced, prepared, or packed, for sale,
or put on sale by such person, and has registered the same as herein-
after provided, it shall be unlawful to counterfeit or imitate such trade-
mark, or to use, sell, offer for sale or in any way utter or circulate any
counterfeit or imitation of any such registered trade-mark.

Section 1456. Whoever counterfeits or imitates any such registered
trade-mark, or knowingly and with intent to deceive, sells, offers for
sale, or in any way utters or circulates any counterfeit or imitation
of the same, or sells or disposes of, or keeps or has in his possession
with intent that the same shall be sold or disposed of, any merchandise
on which or to which any such counterfeit or imitation is attached,
affixed, printed, painted, stamped or impressed, or any merchandise
contained in any box, case, can, package or other container to which
or on which any such counterfeit or imitation is attached, affixed,
printed, painted, stamped or impressed, shall be punished by a fine
of not more than one hundred dollars or by confinement in jail for
not more than three months.

Section 1457. All applications for registration of a trade-mark
and renewals or assignments thereof shall be made on forms prescribed
by the Secretary of the Commonwealth. Any person applying to the
Secretary of the Commonwealth for a certificate of registration of any
trade-mark shall furnish to the said Secretary a copy, fac-simile, or
counterpart thereof. The Secretary of the Commonwealth shall estab-
lish classes of merchandise for the purpose of trade-mark registration,
and shall determine the particular descriptions of goods comprised in
each class. On a single application for registration of a trade-mark,
the trade-mark may be registered, at the option of the applicant, for
any or all goods upon which the trade-mark has actually been used
comprised in a single class of merchandise, provided the particular
descriptions of goods be stated.

Section 1458. Every such person who has heretofore adopted and
used, or shall hereafter adopt and use any trade-mark as provided in
section fourteen hundred and fifty-five, may, subject to the limitations
hereafter set out, register the same for any merchandise comprised
in a single class upon which the same has been actually used, by filing
in the office of the Secretary of the Commonwealth a written applica-
tion therefor duly sworn to stating (1) the name and address of
such person (2) the class of merchandise and a description of the
particular goods upon which it has been and is intended to be used by
the applicant (3) that the applicant is the owner thereof, and has the
right to use the trade-mark sought to be registered, and that no other
person has the right to use the same, either in the identical form or
in any such resemblance thereto as may be calculated to deceive; (4)
that such trade-mark has been used upon merchandise of the class and
description and the date of such use. The applicant shall file with
said application six copies, counterparts or fac-similes of the trade-mark
sought to be registered, and shall pay to the Secretary of the Common-
wealth for such filing a fee of five dollars. The Secretary of the
Commonwealth shall deliver to such person registering any such trade-
mark so many duly attested certificates of the registration of the same
as such person may apply for, for each of which certificates said Secre-
tary shall receive a fee of two dollars and fifty cents. Except, as here-
inafter provided, the registration of trade-marks registered under the
provisions of chapter one hundred and eighty-seven of the Acts of
the General Assembly of nineteen hundred and two-three-four, ap-
proved April thirtieth, nineteen hundred and three, and amendments
thereof, or under the provisions of this chapter, shall expire upon the
expiration of twenty years from the date of registration, but, if regis-
trable under the provisions of this chapter as hereby amended, may be
renewed in like manner and upon payment of like fees as herein required
for original registrations; provided, however, that any such trade-mark
registered prior to July first, nineteen hundred and twenty-three, shall
remain in full force and effect until, and may be renewed, as herein
provided, on or before, July first, nineteen hundred and forty-three.
Any such certificate of registration shall in all suits and prosecutions
under this chapter be sufficient proof of the adoption and registration
of such trade-mark.

Section 1458-a. The Secretary of the Commonwealth shall not
register as a trade-mark the portrait of any living individual, except
with the consent of such individual evidenced by an instrument in
writing, or a merely geographical name or term, or any trade-mark
which is identical with any trade-mark theretofore registered by any
other person and appropriated to merchandise of the same class, or
which so nearly resembles such trade-mark as to be likely to cause
confusion or mistake in the minds of the public or to deceive pur-
chasers, or any trade-mark which consists merely in the name of any
person, not written, printed, impressed or woven in a particular or dis-
tinctive manner, or in association with a portrait of such individual,
or which consists merely in words which are descriptive of the mer-
chandise with which they are used or the character or quality of such
merchandise. |

Section 1459. Any person who shall for himself, or on behalf of
any other person, procure the filing and registration of any trade-mark
in the office of the Secretary of the Commonwealth, under the pro-
visions of this chapter by making any false or fraudulent representa-
tions or declaration, verbally, or in writing, or by any fraudulent means,
shall be liable to pay any damages sustained in consequence of any such
filing, to be recovered by or on behalf of the party injured thereby, in
any court having jurisdiction, and shall be punished by a fine of not
exceeding one hundred dollars or by confinement in jail not exceeding
three months.

Section 1460. Every person who has adopted, used and registered
a trade-mark as aforesaid, may proceed by suit to enjoin the manu-
facture, use, display, or sale of any counterfeits or imitations thereof,
and all courts of competent jurisdiction shall grant injunctions to re-
strain such manufacture, use, display, or sale, as may be by the said
court deemed just and reasonable, and shall require the defendants to
pay to such person all profits derived from such wrongful manufacture,
use, display, or sale; and such court shall 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.

Section 1461. Every person who shall use or display the genuine
registered trade-mark of any other person, in any manner, not being
authorized so to do by such person shall be deemed guilty of a misde-
meanor, and shall be punished by a fine of not more than one hundred
dollars or by confinement in jail for not more than three months.

Section 1462. In all cases where any such association or union is
not incorporated, suits under this chapter be commenced and prose-
cuted by an officer, or member of the association or union, on behalf
of, and for the use of such association or union.

Section 1463. Any person who shall in any way use the name or
seal of any such person in and about the sale of merchandise, not being
authorized to so use the same, shall be guilty of a misdemeanor and
shall be punishable by confinement in jail for not more than three
months or by a fine of not more than one hundred dollars.