GSNC

ARTICLE 1. Trademark Registration Act.

Sec.

§ 80-1. Definitions.

The term "applicant" as used herein means the person filing an application for registration of a trademark under this Article, the person's legal representatives, successors or assigns.
The term "mark" as used herein includes any trademark or service mark entitled to registration under this Article whether registered or not.
The term "person" as used herein means any individual, firm, partnership, corporation, association, union or other organization.
The term "registrant" as used herein means the person to whom the registration of a trademark under this Article is issued, the person's legal representatives, successors or assigns.
The term "Secretary" as used herein means the Secretary of State or the designee of the Secretary charged with the administration of this Article.
The term "service mark" as used herein means a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.
The term "trademark" as used herein means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made, sold, or distributed by him and to distinguish them from goods made, sold, or distributed by others.
The term "use" means the bona fide use of a mark in the State of North Carolina in the ordinary course of trade, and not merely the reservation of a right to a mark. For the purposes of this Article, a mark shall be deemed to be "used" in this State (i) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes placement impractical, then on documents associated with the goods, and the goods are currently sold or otherwise distributed in the State, and (ii) on services when it is used or displayed in the sale or advertising of services and the services are currently being rendered in this State, or are being offered and are available to be rendered in this State.
A mark shall be deemed to be "abandoned" when either of the following occurs:
1. When its use has been discontinued with intent not to resume its use. Intent not to resume may be inferred from circumstances. Nonuse for three consecutive years shall constitute prima facie evidence of abandonment.
2. When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.

(1903, c. 271; Rev., s. 3012; C.S., s. 3971; 1941, c. 255, s. 1; 1967, c. 1007, s. 1; 1991, c. 626, s. 1; 1997-476, s. 1.)

Editor's Note. - Session Laws 1997-476, s. 13, provides: "This act takes precedence over all statutes that are inconsistent with this act or that contradict this act, effective October 1, 1997. The Secretary of State shall advise the General Statutes Commission of any statutes that should be amended or repealed to conform to this act."

Legal Periodicals. - For note on the law of unfair competition in North Carolina, see 46 N.C.L. Rev. 856 (1968).

For article on antitrust and unfair trade practice law in North Carolina, with federal law compared, see 50 N.C.L. Rev. 199 (1972).

For article, "Consumer Investment in Trademark," see 88 N.C.L. Rev. 427 (2010).

For article, "Working Without Chevron: The PTO as Prime Mover," see 65 Duke L.J. 1657 (2016).

For article, "CBA at the PTO," see 65 Duke L.J. 1701 (2016).

For article, "Trademarks as Entrepreneurial Change Agents for Legal Reform," see 95 N.C.L. Rev. 1519 (2017).

For article, "Are There as Many Trademark Offices as Trademark Examiners?,” see 69 Duke L.J. 1807 (2020).

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under this Article as it existed prior to its revision by Session Laws 1967, c. 1007, s. 1.

Theory Underlying Trademark Law. - The law pertaining to trademarks is based upon the dual purpose of protecting the public from inferior products and protecting the reputation and profits of the inventor for the skill given to the invention of the product. Blackwell v. Wright, 73 N.C. 310 (1875), aff'd on rehearing, 74 N.C. 733 (1876).

Common Law Not Abrogated. - State statutes providing for registration of trademarks are in affirmance of the common law. Allen v. Standard Crankshaft & Hydraulic Co., 210 F. Supp. 844 (W.D.N.C. 1962), aff'd, 323 F.2d 29 (4th Cir. 1963).

Chapter Does Not Deal with Trade Names. - This chapter deals with trademarks and service marks and not trade names. Hot Shoppes, Inc. v. Hot Shoppe, Inc., 203 F. Supp. 777 (M.D.N.C. 1962).

Remedies Are Either Declaratory or Cumulative. - The remedies given by statutes providing for registration of trademarks are either declaratory or are cumulative and additional to those recognized and applied by the common law. Allen v. Standard Crankshaft & Hydraulic Co., 210 F. Supp. 844 (W.D.N.C. 1962), aff'd, 323 F.2d 29 (4th Cir. 1963).

Intangible ideas are not protectable under federal copyright or trademark law or North Carolina's trademark statute. Bank Travel Bank v. McCoy, 802 F. Supp. 1358 (E.D.N.C. 1992), aff'd sub nom., Amariglio-Dunn v. McCoy, 4 F.3d 984 (4th Cir. 1993).

Name of Town or Locality. - It seems that the name of a town or locality cannot be exclusively appropriated as a trademark. Blackwell Durham Tobacco Co. v. McElwee, 94 N.C. 425 (1886).

Use of Surname. - As a rule, a trademark cannot be taken in a surname, and any one named Bingham could start a school called the "Bingham School," in the absence of proof of intent to injure, or fraudulently attract the benefit of the good name and reputation acquired by a previously existing "Bingham School." And certainly there could be no confusion between a Bingham School at Asheville and a school even of the identically same name at Mebane, N.C. Bingham School v. Gray, 122 N.C. 699, 30 S.E. 304, 41 L.R.A. 243 (1898).

It is beyond the scope of the powers of the State legislature to establish a monopoly in a family name or to confer a patent right in its use. Bingham School v. Gray, 122 N.C. 699, 30 S.E. 304, 41 L.R.A. 243 (1898).

But one may, by contract, conclude himself from the use of his own name in a given business, and the agreement will be enforced by the courts. Zagier v. Zagier, 167 N.C. 616, 83 S.E. 913 (1914).

For a case denying a federal injunction staying a state trademark infringement case pending resolution of federal complaint alleging violations of the Sherman Antitrust Act, see W.W. Enter., Inc. v. Charlotte Motor Speedway, Inc., 753 F. Supp. 1326 (W.D.N.C. 1990).

§ 80-1.1. Purpose.

The purpose of this Article is to provide a system of State trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the Trademark Act of 1946, 15 U.S.C. § 1051, et seq., as amended. The construction given the federal act should be examined as persuasive authority for interpreting and construing this Article.

(1997-476, s. 2.)

Legal Periodicals. - For article, "Consumer Investment in Trademark," see 88 N.C.L. Rev. 427 (2010).

§ 80-2. Registrability.

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

Consists of or comprises immoral, deceptive or scandalous matter; or
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; or
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; or
Consists of or comprises the name, signature or portrait of any living individual, except with his written consent; or
Consists of a mark which (i) when applied to the goods or services of the applicant, is merely descriptive of them or merely describes one or more of the characteristics, or is deceptively misdescriptive of them, or falsely describes the nature, function, capacity, or characteristics of them, or (ii) when applied to the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them, or (iii) is primarily merely a surname; provided, however, that nothing in this subdivision (5) shall prevent the registration of a mark used in this State by the applicant which has become distinctive of the applicant's goods or services. The Secretary may accept as evidence that the mark has become distinctive, as applied to the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this State for the five years preceding the date on which the claim of distinctiveness is made; or
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.

(1903, c. 271; Rev., ss. 3012, 3017; C.S., ss. 3971, 3976; 1941, c. 255, s. 1; 1967, c. 1007, s. 1; 1991, c. 626, s. 2; 1997-476, s. 3.)

§ 80-3. Application for registration.

Subject to the limitations set forth in this Article, any person who uses a mark, or any person who controls the nature and quality of the goods or services in connection with which a mark is used by another, in this State may file in the office of the Secretary in a format to be prescribed by the Secretary, 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 registration; and, if a corporation, the state of incorporation. If the application for registration relates to a mark used in connection with goods, the applicant shall list either the address of the applicant's principal place of business in North Carolina or a place of distribution and usage of the goods in this State. If the application for registration relates to a mark used in connection with services, the applicant shall list a physical location at which the services are being rendered or offered in this State;
2. The goods or services in connection with which the mark is used and the mode or manner in which the mark is used in connection with the goods or services and the class in which the goods or services 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, the applicant's predecessor in business or by another under the control of the applicant; and
4. A statement that the applicant is the owner of the mark, that the mark is in use, and that to the best of the knowledge of the person verifying the application, no other person has registered in this State, or has the right to use the mark in this State either in the identical form thereof or in such near resemblance thereto as to be likely, when applied to the goods or services of the other person, to cause confusion, or to cause mistake, or to deceive.
The application shall be signed and verified by the applicant, by a partner, by a member of the firm, or an officer of the corporation or association applying for registration. In states in which a notary is not required by law to obtain a notary's stamp or seal, an original certificate of authority of the notary issued by the appropriate State agency shall be submitted with the application. If the application is signed by a person acting pursuant to a power of attorney from the applicant, an original power of attorney or a certified copy of the power of attorney shall accompany the application.
The Secretary may require a statement as to whether an application to register the mark, or portions or a component of the mark, has been filed by the applicant or a predecessor in interest in the United States Patent and Trademark Office and, if so, the applicant shall provide any relevant information required by the Secretary, including the filing date and serial number of the application and the status of the application. If any application was finally refused registration or has otherwise not resulted in a registration, the Secretary may require the applicant to provide in the statement the reason the application was not registered. The Secretary may also require that a drawing of the mark accompany the application in a form specified by the Secretary.

The application shall be accompanied by three specimens of the mark as currently used and by a filing fee of seventy-five dollars ($75.00), payable to the Secretary.

(1903, c. 271, s. 3; Rev., s. 3014; C.S., s. 3973; 1935, c. 60; 1941, c. 255, s. 2; 1967, c. 1007, s. 1; 1983, c. 713, s. 49; 1991, c. 626, s. 3; 1997-476, s. 4; 2002-126, s. 29A.36.)

§ 80-3.1. Examination of application.

Upon filing an application for registration and payment of the application fee, the Secretary may cause the application to be examined for conformity with this Article.
The applicant shall provide any additional relevant information requested by the Secretary, including a description of a design mark, and may make, or authorize the Secretary to make, any amendments to the application reasonably requested by the Secretary or deemed by the applicant to be advisable to respond to a rejection or objection.
The Secretary may require the applicant to disclaim an unregisterable component of a mark otherwise registrable, and an applicant may voluntarily disclaim a component of a mark requested to be registered. No disclaimer shall prejudice or affect the applicant's or registrant's rights then existing or thereafter arising in the disclaimed matter, or the applicant's or registrant's rights of registration on another application if the disclaimed matter is distinctive of the applicant's or registrant's goods or services.
The Secretary may (i) amend the application submitted by the applicant, if the applicant consents, or (ii) require a new application be submitted.
If the Secretary finds that the applicant is not entitled to registration, the Secretary shall advise the applicant of the reasons the applicant is not entitled to registration. The applicant shall have a reasonable period of time, specified by the Secretary, in which to reply or to amend the application. If the applicant replies and amends the application, the Secretary shall reexamine the application. This procedure may be repeated until (i) the Secretary finally refuses registration of the mark, or (ii) the applicant fails to reply or to amend the application within the specified period. If the applicant fails to reply or to amend the application, the application shall be deemed to have been abandoned.
If the Secretary finally refuses registration of the mark, the applicant may seek a writ of mandamus to compel registration. The writ may be granted, without costs to the Secretary, on proof that all the statements in the application are true and that the mark is entitled to registration.
When the Secretary receives more than one application seeking registration of the same or confusingly similar marks for the same or related goods or services and processes those applications concurrently, the Secretary shall grant priority to the applications in order of filing. If a previously filed application is granted a registration, any other application shall then be rejected. A rejected applicant may bring an action for cancellation of the registration on grounds of prior or superior rights to the mark, in accordance with the provisions of this Article.

(1997-476, s. 5.)

§ 80-4. Certificate of registration.

Upon compliance by the applicant with the requirements of this Article, the Secretary 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 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 or services and a description of the goods or services on which the mark is used, a reproduction of the mark, the registration date, the registration number and the term of the registration.

Any certificate of registration issued by the Secretary under the provisions hereof or a copy thereof duly certified by the Secretary shall be admissible in evidence as competent and sufficient proof of the registration of the mark in any action or judicial proceedings in any court of this State.

(1903, c. 271, s. 4; Rev., s. 3015; C.S., s. 3974; 1967, c. 1007, s. 1; 1991, c. 626, s. 4; 1997-476, s. 6.)

§ 80-5. Duration and renewal.

Registration of a mark hereunder shall be effective for a term of 10 years from the date of registration and shall be renewable for successive terms of 10 years upon application filed within six months prior to the expiration of any term. A renewal fee of thirty-five dollars ($35.00), payable to the Secretary, shall accompany the application for renewal of the registration. Within six months following the expiration of a term of five years from the date of registration, or the last renewal of registration of the mark, the applicant shall submit a specimen showing evidence of current use of the mark and a signed statement verifying the use of such mark on a form to be furnished by the Secretary of State. Use of the form furnished by the Secretary of State is mandatory. Failure to submit this verification and specimen showing evidence of current use shall be grounds for cancellation of the registration of the mark by the Secretary of State.

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

The Secretary of State shall notify registrants of marks hereunder of the necessity of submitting evidence of current use of the mark after five years from the date of registration or of the last renewal of registration of the mark, by writing to the last known address of the registrants within the year preceding the due date for such submission.

Registration of marks applied for under previous acts shall be continued in force for the full 10-year term without the necessity of submitting evidence of current use of the mark during the term.

All applications for renewals under this Article, whether of registrations made under this Article or of registrations effected under any prior act, shall be filed with the Secretary in a format prescribed by the Secretary specifying the information called for by G.S. 80-3 and shall include a statement that the mark is still in use in this State, setting forth those goods or services recited in the registration in connection with which the mark is still in use. The registration shall be renewed only as to the goods and services.

(1967, c. 1007, s. 1; 1991, c. 626, s. 5; 1997-476, s. 7.)

§ 80-6. Assignment.

Any mark and its registration hereunder shall be assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill 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 upon the payment of a fee of twenty-five dollars ($25.00), payable to the Secretary 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 within three months after the date thereof or prior to subsequent purchase.
Any registrant or applicant effecting a change of the name of the person to whom the mark was issued or for whom an application was filed may record a certificate of change of name of the registrant or applicant with the Secretary upon payment of the recording fee required under G.S. 80-7. The Secretary may issue a certificate of registration of an assigned application in the name of the assignee. The Secretary may issue in the name of the assignee a new certificate for the remainder of the term of the registration or for the last renewal of the registration.
Other instruments that relate to a mark registered or application pending pursuant to this Article, including licenses, security interests, and mortgages, may be recorded in the discretion of the Secretary, upon payment of the recording fee required under G.S. 80-7. Instruments authorized under this subsection shall be in writing and duly executed.
Acknowledgment shall be prima facie evidence of the execution of an assignment or other instrument and, when recorded by the Secretary, the record shall be prima facie evidence of execution.
A photocopy of any instrument referenced in subsection (a), (b), or (c) of this section shall be accepted for recording if it is certified by any party to the instrument, or the party's successor, to be a true and correct copy of the original.

(Rev., s. 3016; C.S., s. 3975; 1967, c. 1007, s. 1; 1991, c. 626, s. 6; 1997-476, s. 8.)

§ 80-7. Records.

The Secretary shall keep for public examination all assignments recorded under G.S. 80-6 and a record of all marks registered or renewed under this Article. The Secretary shall collect the following fees for copying, comparing, and certifying a copy of any filed document relating to a trademark or service mark:

Five dollars ($5.00) for the certificate, and
One dollar ($1.00) per page for copying or comparing a copy to the original.

The Secretary shall collect a recording fee of ten dollars ($10.00) for recording name changes of corporate registrants and for recording transfers of the registration of any mark by merger or consolidation if the articles of merger or consolidation are records not on file in the Corporate Division of the Department of the Secretary of State.

(1967, c. 1007, s. 1; 1991, c. 626, s. 7; 1997-476, s. 9.)

§ 80-8. Cancellation.

The Secretary shall cancel from the register, in whole or in part:

Repealed by Session Laws 1991, c. 626, s. 8.
Any registration concerning which the Secretary shall receive a voluntary request for cancellation thereof from the registrant or the assignee of record.
All registrations granted under this Article and not renewed in accordance with the provisions hereof.
Any registration concerning which a court of competent jurisdiction shall find:
1. That the registered mark has been abandoned or has become incapable of serving as a mark;
2. That the registrant is not the owner of the mark;
3. That the registration was granted improperly;
4. That the registration was obtained fraudulently;
5. That the registration is for a mark that is or has become the generic name for the goods or services for which it has been registered or for a portion of the goods or services for which it has been registered;
6. That the registration was obtained by means of materially false statements in the application for registration; or
7. That the registration is so similar to another mark used in the State as to be likely to cause confusion or mistake or to deceive if (i) the other mark was registered by another person in the United States Patent and Trademark Office prior to the date of the applicant's first use of the mark that is the subject of the application for registration, and (ii) the other mark has not been abandoned. However, if the registrant proves that the registrant is the owner of a concurrent registration of a mark in the United States Patent and Trademark Office covering an area including the entire State, the registration shall not be cancelled.
Any registration when a court of competent jurisdiction shall order cancellation thereof.
, (7) Repealed by Session Laws 1997-476, s. 10.

(1967, c. 1007, s. 1; 1991, c. 626, s. 8; 1997-476, s. 10.)

§ 80-9. Classification.

The Secretary shall establish a classification of goods and services for convenience of administration of this Article, but not to limit or extend the applicant's or registrant's rights, and a single application for registration of a mark may include any or all goods upon which, or services for which, the mark is actually being used indicating the appropriate class or classes of goods or services. When a single application includes goods or services that fall within multiple classes, the Secretary may require payment of a fee for each class. The Secretary may amend the classes herein established to conform them to the classification established for the United States Patent and Trademark Office as from time to time amended.

(1967, c. 1007, s. 1; 1991, c. 626, s. 9; 1997-476, s. 11.)

§ 80-10. Fraudulent registration.

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 under the provisions hereof, 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 filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.

(1903, c. 271, s. 5; Rev., s. 3018; C.S., s. 3977; 1967, c. 1007, s. 1; 1997-476, s. 12.)

§ 80-11. Infringement.

Subject to the provisions of G.S. 80-13, any person who shall

Use in this State without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this Article in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
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 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 G.S. 80-12, except that under subdivision (2) hereof the registrant shall not be entitled to recover profits or damages or any penalty unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.

(1903, c. 271, s. 6; Rev., s. 3019; C.S., s. 3978; 1967, c. 1007, s. 1.)

§ 80-11.1. Criminal use of counterfeit trademark.

For purposes of this section:
1. "Counterfeit mark" means a mark that is used in connection with the sale or offering for sale of goods or services that are identical to or substantially indistinguishable from the goods or services with which the mark is used or registered, and the use of which is likely to cause confusion, mistake, or deception, with the use occurring without authorization of the:
  1. Owner of the registered mark, and is identical to or substantially indistinguishable from a mark that is registered on the principal register of the United States Patent and Trademark Office or with the Trademark Division of the Department of the Secretary of State; or
  2. Owner of the unregistered mark and is identical to or substantially indistinguishable from symbols, signs, emblems, insignias, trademarks, trade names, or words protected by section 110 of the Amateur Sports Act of 1978 (Title 36, U.S.C. § 380).
2. "Retail sales value" means the value computed by multiplying the number of items having a counterfeit mark used thereon or in connection therewith, by the retail price at which a similar item having a mark used thereon or in connection therewith, the use of which is authorized by the owner, is offered for sale to the public.
Any person who knowingly and willfully (i) uses or causes to be used a counterfeit mark on or in connection with goods or services intended for sale or (ii) has possession, custody, or control of goods having a counterfeit mark used thereon or in connection therewith, that are intended for sale, shall be punished as follows:
1. If the goods or services having a counterfeit mark used thereon or in connection therewith, or on or in connection with which the person intends to use a counterfeit mark, have a retail sales value not exceeding three thousand dollars ($3,000), the person is guilty of a Class 2 misdemeanor;
2. If the goods or services having a counterfeit mark used thereon or in connection therewith, or on or in connection with which the person intends to use a counterfeit mark, have a retail sales value exceeding three thousand dollars ($3,000) but not exceeding ten thousand dollars ($10,000), the person is guilty of a Class I felony; and
3. If the goods or services having a counterfeit mark used thereon or in connection therewith, or on or in connection with which the person intends to use a counterfeit mark, have a retail sales value exceeding ten thousand dollars ($10,000), the person is guilty of a Class H felony.
Any person who knowingly (i) uses any object, tool, machine, or other device to produce or reproduce a counterfeit mark or (ii) has possession, custody, or control of any object, tool, machine, or device with intent to produce or reproduce a counterfeit mark, is guilty of a Class H felony.
Any personal property, including any item, object, tool, machine, device, or vehicle of any kind, employed as an instrumentality in the commission of, or in aiding or abetting in the commission of a violation of subsection (b) or (c) of this section, is subject to seizure and forfeiture and shall be disposed of in accordance with the provisions of Article 2 of Chapter 15 of the General Statutes.
For purposes of enforcing this section, the Department of the Secretary of State's law enforcement agents have statewide jurisdiction. These law enforcement agents may assist local law enforcement agencies in their investigations and may initiate and carry out, in coordination with local law enforcement agencies, investigations of violations of this section. These law enforcement agents have all of the powers and authority of law enforcement officers when executing arrest warrants. These agents shall be authorized to have fictitious licenses, license tags, and registrations, pursuant to G.S. 20-39(h) or G.S. 14-250, for the purpose of conducting criminal investigations.
The Secretary of State may refer any available evidence concerning violations of this section to the proper district attorney, who may, with or without such a reference, institute the appropriate criminal proceedings.
Pursuant to an agreement between the departments, the Secretary of State may refer any available evidence concerning violations of this section to the Secretary of Revenue for purposes of determining the obligations of the violators of this section to the State under the provisions of Chapter 105 of the General Statutes.

The possession, custody, or control of more than 25 items having a counterfeit mark used thereon or in connection therewith creates a presumption that the person having possession, custody, or control of the items intended to sell those items.

The attorneys employed by the Secretary of State shall be available to prosecute or assist in the prosecution of criminal cases when requested to do so by a district attorney and the Secretary of State approves.

(1995, c. 436, s. 1.)

CASE NOTES

Applied in State v. Lynch, 217 N.C. App. 455, 720 S.E.2d 452 (2011).

§ 80-12. Violation a deceptive or unfair trade practice.

A violation of G.S. 80-10 or G.S. 80-11 constitutes a violation of G.S. 75-1.1.

(1903, c. 271, s. 8; Rev., s. 3021; C.S., s. 3980; 1941, c. 255, s. 3; 1967, c. 1007, s. 1; 1995, c. 436, s. 2.)

CASE NOTES

When Relief Granted. - Before the owner of a trademark can call upon the courts for relief, he must show not only that he has a clear legal right to the trademark, but that there has been a plain violation of it; and where a violation is alleged, the true inquiry is, whether the mark of the defendant is so assimilated to that of the plaintiff as to deceive purchasers. And it will make no difference whether the party designed to mislead the public or whether the symbol adopted was calculated to deceive. Blackwell v. Wright, 73 N.C. 310 (1875), aff'd on rehearing, 74 N.C. 733 (1876).

If it appears that the trademark alleged to be an imitation, though resembling the complainant's in some respects, would not probably deceive the ordinary mass of purchasers, an injunction will not be granted. An imitation is colorable, and will be enjoined, which requires a careful inspection to distinguish its mark and appearance from that of the manufacture imitated. Blackwell v. Wright, 73 N.C. 310 (1875), aff'd on rehearing, 74 N.C. 733 (1876).

Cited in Lyons Pshp., L.P. v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001).

§ 80-13. Common-law rights.

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

(1967, c. 1007, s. 1.)

§ 80-14. Severability of Article.

If any provision hereof, or the application of such provision to any person or circumstance is held invalid, the remainder of this Article shall not be affected thereby.

(1967, c. 1007, s. 1.)

ARTICLE 2. Timber Marks.

Sec.

§ 80-15. Timber dealers may adopt.

Any person dealing in timber in any form shall be known as a timber dealer and as such may adopt a trademark, in the manner and with the effect in this Article provided.

(1903, c. 261, s. 1; Rev., s. 3023; C.S., s. 3985.)

§ 80-16. How adopted, registered and published.

Every such dealer desiring to adopt a trademark may do so pursuant to the provisions of Article 1 of Chapter 80 of the General Statutes. Nothing in this section invalidates or otherwise alters the legal effect of any timber mark registered according to the law in effect at the time of registration.

(1889, c. 142; 1903, c. 261, s. 2; Rev., s. 3024; C.S., s. 3986; 1999, c. 456, s. 59; 2012-18, s. 1.11.)

Effect of Amendments. - Session Laws 2012-18, s. 1.11, effective July 1, 2012, rewrote the section.

§ 80-17. Property in and use of trademarks.

Every trademark so adopted shall, from the date thereof, be the exclusive property of the person adopting the same. The proprietor of such trademark shall, in using the same, cause it to be plainly stamped, branded or otherwise impressed upon each piece of timber upon which the same is placed.

(1889, c. 142; 1903, c. 261, ss. 3, 4; Rev., s. 3025; C.S., s. 3987.)

§ 80-18. Effect of branding timber purchased.

When timber is purchased by the proprietor of any such trademark, and the said trademark is placed thereon as hereinbefore provided, such timber shall thenceforth be deemed the property of such purchaser, without any other or further delivery thereof, and such timber shall thereafter be at the risk of the purchaser, unless otherwise provided by contract in writing between the parties.

(1889, c. 142; 1903, c. 261, s. 6; Rev., s. 3026; C.S., s. 3988.)

§ 80-19. Trademark on timber evidence of ownership.

In any action, suit or contest in which the title to any timber, upon which any trademark has been placed as aforesaid, shall come in question, it shall be presumed that such timber was the property of the proprietor of such trademark, in the absence of satisfactory proof to the contrary.

(1903, c. 261, s. 7; Rev., s. 3027; C.S., s. 3989.)

§ 80-20. Fraudulent use of timber trademark, misdemeanor.

If any person shall use or attempt to use any timber trademark without the written consent of the proprietor thereof, or falsely and fraudulently place any trademark on timber not the property of the owner of such trademark without his written consent, or intentionally and without lawful authority remove, deface or destroy any timber trademark or the imprint thereof on any timber or intentionally put any such timber in such a position or place so remote from the stream from which it was taken or on which it was afloat as to render it inconvenient or unnecessarily expensive to replace the same in such stream, he shall be guilty of a Class 1 misdemeanor.

(1903, c. 261, ss. 3-5; Rev., s. 3854; C.S., s. 3990; 1993, c. 539, s. 584; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 80-21. Larceny of branded timber.

If any person shall knowingly and unlawfully buy, sell, take and carry away, secrete, destroy or convert to his own use, any timber upon which a trademark is stamped, branded or otherwise impressed, or shall knowingly and unlawfully buy, sell, take and carry away, secrete, destroy or convert to his own use, any timber upon which a trademark has been intentionally and without lawful authority removed, defaced or destroyed, he shall be deemed guilty of larceny thereof and punished as in other cases of larceny.

(1903, c. 261, s. 5; Rev., s. 3853; C.S., s. 3991.)

§ 80-22. Altering timber trademark crime.

If any person shall willfully change, alter, erase or destroy any registered timber mark or brand put or cut upon any logs, timber, lumber or boards, except by the consent of the owner thereof, with intent to steal the said logs or timber, he shall be guilty of a Class 3 misdemeanor.

(1889, c. 142, s. 3; 1903, c. 41; Rev., s. 3855; C.S., s. 3992; 1943, c. 543; 1993, c. 539, s. 585; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 80-23. Possession of branded logs without consent, misdemeanor.

If any person shall knowingly and willfully take up or have in his possession any log, timber, lumber or board upon which a registered timber mark or brand has been put or cut, except by the consent of the owner thereof, he shall be guilty of a Class 3 misdemeanor.

(1889, c. 142, s. 4; 1903, c. 42; Rev., s. 3856; C.S., s. 3993; 1993, c. 539, s. 586; 1994, Ex. Sess., c. 24, s. 14(c).)

ARTICLE 3. Mineral Waters and Beverages.

§§ 80-24 through 80-32: Repealed by Session Laws 1987, c. 402.

ARTICLE 4. Farm Names.

Sec.

§§ 80-33 through 80-37: Repealed by Session Laws 2012-18, s. 1.12, effective July 1, 2012.

(§ 80-33: 1915, c. 108, s. 1; C.S., s. 4004; repealed by 2012-18, s. 1.12; § 80-34: 1915, c. 108, s. 1; C.S., s. 4005; repealed by 2012-18, s. 1.12; § 80-35: 1915, c. 108, s. 1; C.S., s. 4006; repealed by 2012-18, s. 1.12; § 80-36: 1915, c. 108, s. 1; C.S., s. 4007; repealed by 2012-18, s. 1.12; § 80-37: 1915, c. 108, s. 1; C.S., s. 4008.)

Editor's Note. - Former G.S. 80-33 through 80-37 pertained to registration of farm names and registry procedures.

§ 80-38. When transfer of farm carries name.

When any owner of a farm, the name of which has been recorded in the office of the register of deeds of the county in which the farm is located according to the law in effect at the time of recording, transfers by deed or otherwise the whole of such farm, such transfer may include the registered name thereof; but if the owner shall transfer only a portion of such farm, then, in the event, the registered name thereof shall not be transferred to the purchaser unless so stated in the deed or conveyance.

(1915, c. 108, s. 4; C.S., s. 4009; 2012-18, s. 1.13.)

Effect of Amendments. - Session Laws 2012-18, s. 1.13, effective July 1, 2012, substituted "in the office of the register of deeds of the county in which the farm is located according to the law in effect at the time of recording" for "as provided in this Article."

§ 80-39. Cancellation of registry; fee.

When any owner of a farm name that has been registered in the office of the register of deeds of the county in which the farm is located desires to cancel the registered name thereof, such owner may record a duly signed and acknowledged instrument to that effect in the register of deeds real estate records.

(1915, c. 108, s. 5; C.S., s. 4010; 2012-18, s. 1.14.)

Effect of Amendments. - Session Laws 2012-18, s. 1.14, effective July 1, 2012, rewrote the section.

ARTICLE 5. Stamping of Gold and Silver Articles.

Sec.

§ 80-40. Marking gold articles regulated.

It shall be unlawful to make for sale, or sell, or offer to sell or dispose of, or have in possession with intent to sell or dispose of, any article of merchandise made in whole or in part of gold or any alloy of gold, and having stamped, branded, engraved or imprinted thereon, or upon any tag, card or label attached thereto, or upon any box, package, cover or wrapper in which the article is enclosed, any mark indicating or designed to indicate that the gold, or alloy of gold, therein is of a greater degree of fineness than its actual fineness, unless the actual fineness, in the case of flatware and watchcases, is not less by more than three one-thousandths parts, and in the case of all other articles is not less by more than one-half karat than the fineness indicated, according to the standards and subject to the qualifications hereinafter set forth.

In any test for ascertaining the fineness of gold or alloy in the articles, according to the required standards, the part of the gold or alloy taken for the test, analysis or assay shall be a part not containing or having attached thereto any solder or alloy of inferior fineness used for brazing or uniting the parts of the articles. In addition to the foregoing tests and standards, the actual fineness of the entire quantity of gold and of its alloys contained in any article mentioned in this section (except watchcases), including all solder or alloy of inferior metal used for brazing or uniting the parts (all such gold, alloys, and solder being assayed as one piece), shall not be less by more than one karat than the fineness indicated by the mark used as above indicated. Violation of this section is a Class 1 misdemeanor.

(1907, c. 331, s. 1; C.S., s. 4012; 1993, c. 539, s. 587; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 80-41. Marking silver articles regulated.

It shall be unlawful to make for sale or sell or offer to sell or dispose of or have in possession with intent to sell or dispose of -

Any article of merchandise made in whole or in part of silver of any alloy of silver, and having marked, stamped, branded or engraved or imprinted thereon, or upon any tag, card or label attached thereto, or upon any box, package, cover or wrapper in which the article is enclosed, the words "sterling silver" or "sterling" or any colorable imitation thereof, unless nine hundred and twenty-five one-thousandths of the component parts of the metal appearing or purporting to be silver, of which the article is manufactured, are pure silver, subject to the qualifications hereinafter set forth: Provided, that in the case of all such articles there shall be allowed a divergence in fineness of four one-thousandths parts from the foregoing standard.
Any article of merchandise made in whole or in part of silver or of any alloy of silver, and having marked, stamped, branded, engraved or imprinted thereon, or upon any card, tag or label attached thereto, or upon any box, package, cover or wrapper in which the article is enclosed, the words "coin" or "coin silver," or any colorable imitation thereof, unless nine hundred one-thousandths of the component parts of the metal appearing or purporting to be silver, of which the article is manufactured, are pure silver, subject to the qualifications hereinafter set forth: Provided, that in the case of all such articles there shall be allowed a divergence in fineness of four one-thousandths parts from the foregoing standards.
Any article of merchandise made in whole or in part of silver or of any alloy of silver, and having stamped, branded, engraved or imprinted thereon, or upon any tag, card or label attached thereto, or upon any box, package, cover or wrapper in which the article is enclosed, any mark or word (other than the word "sterling" or the word "coin") indicating, or designed to indicate, that the silver or alloy of silver in the article is of a greater degree of fineness than its actual fineness, unless the actual fineness is not less by more than four one-thousandths parts than the actual fineness indicated by the use of such mark or word, subject to the qualifications hereinafter set forth.

In any test for ascertaining the fineness of the articles mentioned in this section, according to the foregoing standards, the part taken for test, analysis or assays shall be a part not containing or having attached thereto any solder or alloy of inferior metal used for brazing or uniting the parts of such article. In addition to the foregoing test and standards, the actual fineness of the entire quantity of metal purporting to be silver contained in any article mentioned in this section, including all solder or alloy of inferior fineness used for brazing or uniting the parts (all such silver, alloy or solder being assayed as one piece), shall not be less by more than ten one-thousandths parts than the fineness indicated according to the foregoing standards, by the mark employed as above indicated. Violation of this section is a Class 1 misdemeanor.

(1907, c. 331, s. 2; C.S., s. 4013; 1993, c. 539, s. 588; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 80-42. Marking articles of gold plate regulated.

It shall be unlawful to make for sale, or sell, or offer to sell or dispose of, or have in possession with intent to sell or dispose of, any article of merchandise made in whole or in part of inferior metal, having deposited or plated thereon or brazed or otherwise affixed thereto a plate, plating, covering or sheet of gold, or of any alloy of gold, which article is known in the market as "rolled gold plate," "gold plate," "gold-filled," or "gold electroplate," or by any similar designation, and having stamped, branded, engraved or imprinted thereon, or upon any tag, card or label attached thereto, or upon any box, package, cover or wrapper in which the article is enclosed, any word or mark usually employed to indicate the fineness of gold, unless such word be accompanied by other words plainly indicating that such article or some part thereof is made of rolled gold plate, or gold plate, or gold electroplate, or is gold-filled, as the case may be. Violation of this section is a Class 1 misdemeanor.

(1907, c. 331, s. 3; C.S., s. 4014; 1993, c. 539, s. 589; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 80-43. Marking articles of silver plate regulated.

It shall be unlawful to make for sale, or sell, or offer to sell or dispose of, or have in possession with intent to sell or dispose of, any article of merchandise made in whole or in part of inferior metal, having deposited or plated thereon or brazed or otherwise affixed thereto, a plate, plating, covering or sheet of silver or of any alloy of silver, which article is known in the market as "silver plate" or "silver electroplate," or by any similar designation, and having stamped, branded, engraved or imprinted thereon, or upon any tag, card or label attached thereto, or upon any box, package, cover or wrapper in which the article is enclosed, the word "sterling" or the word "coin," either alone or in conjunction with any other words or marks. Violation of this section is a Class 1 misdemeanor.

(1907, c. 331, s. 4; C.S., s. 4015; 1993, c. 539, s. 590; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 80-44. Violation of Article misdemeanor.

Every person, firm, corporation or association guilty of a violation of any one of the preceding sections of this Article, and every officer, manager, director or managing agent of any such person, firm, corporation or association directly participating in such violation or consenting thereto, shall be guilty of a Class 1 misdemeanor: Provided, that if the person charged with violation of this Article shall prove that the article concerning which the charge was made was manufactured prior to June 13, 1907, then the charge shall be dismissed.

(1907, c. 331, s. 5; C.S., s. 4016; 1993, c. 539, s. 591; 1994, Ex. Sess., c. 24, s. 14(c).)

ARTICLE 6. Cattle Brands.

Sec.

§ 80-45. Owners of stock to register brand or marks.

Every person who has any horses, cattle, hogs or sheep may have an earmark or brand different from the earmark or brand of all other persons, which he shall record with the clerk of the board of commissioners of the county where his horses, cattle, hogs or sheep are; and he may brand all horses 18 months old and upwards with the said brand, and earmark all his hogs and sheep six months old and upwards with the said earmark; and earmark or brand all his cattle 12 months old and upwards; and if any dispute shall arise about any earmark or brand, the same shall be decided by the record thereof.

(R.C., c. 17, s. 1; Code, s. 2317; Rev., s. 3028; C.S., s. 4017.)

ARTICLE 7. Recording of Cattle Brands and Marks with Commissioner of Agriculture.

§§ 80-46 through 80-56: Repealed by Session Laws 1975, c. 261, s. 1.

ARTICLE 8. Registration and Protection of Livestock Brands.

Sec.

§ 80-57. Purpose.

The purpose of this Article is to discourage livestock theft by allowing for the voluntary individual registration of brand marks for certain livestock.

(1975, c. 261, s. 1.)

Editor's Note. - The act which added this Article repealed Article 7, entitled "Recording of Cattle Brands and Marks with Commissioner of Agriculture." Where former provisions were similar to the new provisions, the historical citations to the repealed sections have been added to the new sections.

§ 80-58. Definitions.

"Board". - The term "Board" means the North Carolina Board of Agriculture.
"Brand". - The term "brand" means an identification mark permanently affixed into the hide of livestock by a hot iron or an extremely cold brand known as a "freeze brand."
"Commissioner". - The term "Commissioner" means the Commissioner of Agriculture of the State of North Carolina.
"Livestock". - The term "livestock" means cattle, horses, ponies, mules, and asses.
"Person". - The term "person" means an individual, firm, company, association, partnership or corporation.

(1935, c. 232, s. 1; 1975, c. 261, s. 1.)

Cross References. - As to the intent of the General Assembly that llamas be treated as domesticated livestock in order to promote the development and improvement of the llama industry in the State, see G.S. 106-22.4.

§ 80-59. Responsibility and authority of Commissioner of Agriculture; application for registration; transfer of ownership of brand.

The Commissioner shall record livestock brands and maintain a record of such brands pursuant to this Article. Such records shall be public and shall be prima facie evidence of ownership of livestock which is properly branded under this Article. The Commissioner shall authorize such agents within the North Carolina Department of Agriculture and Consumer Services as he deems necessary to implement this Article.

Any person desiring the exclusive use of a brand shall make application to the Commissioner on forms prescribed by the Board. The transfer of ownership of a brand registration may be done only at the written request of the brand registrant of record. The Commissioner shall receive a fee of ten dollars ($10.00) for recording such transfer.

(1935, c. 232, ss. 3-5; 1975, c. 261, s. 1; 1997-261, s. 109.)

§ 80-60. No brands duplicated.

No brand shall be registered that is a reasonable facsimile of another registered brand or that will likely be confused with another brand registered under this Article.

(1975, c. 261, s. 1.)

§ 80-61. Rules and regulations.

The Board shall have authority to promulgate reasonable rules and regulations for implementation of this Article which shall include, but not be limited to, the location of and the size of brand marks.

(1975, c. 261, s. 1.)

§ 80-62. Fees for recording.

The Commissioner is authorized to collect a fee of twenty-five dollars ($25.00) for the recording of each new brand, or for rerecording of each brand, and shall issue one certified copy of each brand recording to the holder of said brand. Duplicate certificates of registration may be issued by the Commissioner upon payment of a fee of two dollars ($2.00). Revenues collected pursuant to this Article shall be deposited with the State Treasurer to the account of the North Carolina Department of Agriculture and Consumer Services.

(1935, c. 232, ss. 5, 6; 1975, c. 261, s. 1; 1997-261, s. 109.)

§ 80-63. Records to be kept of sales and slaughter.

Persons or agents selling or bartering or exchanging branded livestock in the State of North Carolina shall provide the purchaser or new owner with a bill of sale showing a reasonable facsimile of the brand on any and all livestock having a brand as defined in this Article. Such bills of sale shall be prima facie evidence of transfer of ownership of branded livestock. Slaughter facilities in the State of North Carolina shall affix to their normal records of receipt of livestock a reasonable facsimile of the brand on any branded livestock received by them. Such records shall be maintained for at least 12 months.

(1935, c. 232, ss. 8, 9; 1975, c. 261, s. 1.)

§ 80-64. Defacing of brands prohibited.

No person may change, conceal, deface, disfigure or obliterate any brand previously branded, impressed, or marked on any livestock, or put his or any other brand upon or over any part of any brand previously branded or marked upon any livestock, and no person shall make or use any counterfeit of any brand of any other person.

(1935, c. 232, s. 10; 1975, c. 261, s. 1.)

§ 80-65. Rerecording.

Every brand recorded under this Article, in order to remain effective, must be rerecorded with the Commissioner during the tenth year from its next previous recordation. Each person having a brand registered in the State of North Carolina shall be notified in writing by the Commissioner that said brand must be rerecorded to prohibit its disenrollment from the record of such brand maintained by the Commissioner.

(1975, c. 261, s. 1.)

§ 80-66. Violation a misdemeanor.

Any person who violates any provision of this Article or any rule or regulation of the Board promulgated hereunder shall be guilty of a Class 2 misdemeanor.

(1935, c. 232, s. 11; 1975, c. 261, s. 1; 1993, c. 539, s. 592; 1994, Ex. Sess., c. 24, s. 14(c).)