Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1907, (In two parts), Part I
File No. 8226/1.
Minister McCreery to the Secretary of State.
Santo Domingo, July 31, 1907.
Sir: I have the honor to inclose copy and translation of the trademark law passed by the Dominican Congress which adjourned last month.
Recently there have been many inquiries from the United States relative to the requirements of the Dominican trade-mark law.
It might be a convenience to the department, and it certainly would be to this legation and consulate-general, to have the law in printed form for distribution to American inquirers.
I have, etc.,
dominican trade-mark law.
Article 1. Any manufacturer or dealer has the right to distinguish his wares or products by means of special trade-marks.
Article 2. Trade-marks may be made up of anything not prohibited by this law and which may distinguish certain articles from others identical or similar but of different origin. Any name, signature or firm, letters or symbols may serve for this purpose only if used in a distinctive form. Trade-marks may be used on the articles themselves, or on the wrappings or packages which may contain them.
Article 3. With the object of guaranteeing the exclusive right of possession and the exclusive use of said trade-marks, it is indispensable that they be registered, deposited, and published in accordance with the terms of the present law.
[Page 380]Registration requirements.
Article 4. In order to effect the registration it will be necessary that the person interested, or his legal representative, apply to the minister of improvements and public Works, application being made on properly stamped paper and accompanied by two or more copies or facsimiles of the trade-mark, which must contain a detailed exposition of what constitutes the mark. The application should contain further a declaration of the kind of industry or business to which it is assigned for use, the vocation of the petitioner, and his place of residence.
Article 5. The chief clerk of the ministry of improvements and public works shall certify each one of the models or copies, the day and hour upon which they are received, and, in case of the registration being ordered, will deposit one of said copies in the archives of the ministry and will deliver one to the interested person, together with the certificate of registration duly numbered. There shall be published in the Gaceta Oficial the certificate of registration which shall contain the characteristic features of the trade-mark, copied from the declaration required by article 4.
Article 6. Registration shall be forbidden of such marks as contain: First, the coat of arms, medals, or insignia, either public, official, national, or foreign, except in the case of its due authorization previous to the passage of this law. Second, a name or firm that the petitioner may not use legally. Third, the indication of a determinate locality or establishment which is not that of the origin of the article, even though to such indication there be added or not a fictitious name or that of another. Fourth, words, pictures, or figures which involve offense to individuals or to public decorum. Fifth, the reproduction of any other mark already registered for an article of the same kind. Sixth, the entire or partial imitation of a mark already registered for a product of the same kind, which might lead the consumer into error or confusion. The possibility of error or confusion shall be considered as such whenever the differences between two marks can not be recognized without due examination or comparison, in which event it is to be subject to the decision of the minister of improvements and public works, assisted by the members of the council.
Disputes as to ownership—Making transfers.
Article 7. In the registration of trade-marks the following rules shall be observed: First, the precedence as regards the day and hour of presentation of the mark will establish the preference to be given to the petitioner as regards registration. In the case of the simultaneous presentation of one or more identical or similar marks, the one shall be admitted which shall have been used or possessed during the greater length of time, and this requisite lacking, none of said marks shall be registered until the parties concerned shall modify them. Second, in the case of any doubt existing as regards the use or possession in any way, the minister of improvements and public works shall ordain that the parties interested adjust the question before the commercial court, and then he shall proceed to effect the registration in conformity with the judgment pronounced.
Article 8. The registration of a mark shall be valid for all goods for twenty years, at the termination of which it may be renewed, and so on successively. The registration shall be considered null and void should the owner of the registered mark make no use of it within a period of one year.
Article 9. The mark can only be transferred with the industry of the product or the business for which it was adopted, due annotation being made in the registration, in consideration of authentic documents. A like annotation shall be made if, once the firms changed, the trade-mark should still exist. In both cases the publication of the same shall be necessary.
Fines for breaking the law.
Article 10. A fine of $100 gold, to be turned into the treasury, shall be imposed upon: First, anyone who uses the legal mark of another person. Second, anyone who reproduces, in its entirety or in part, in any way whatsoever, and without the consent of the owner or of his legal representative, any registered and published trade-mark. Third, anyone who imitates a trade-mark in such a way as to deceive the consumer. Fourth, anyone who uses such imitated mark. Fifth, anyone who sells or offers for sale articles which display [Page 381] an imitated trade-mark, provided that he can not justify the manner of its derivation. Sixth, anyone who makes use in his products of a commercial name or that of a firm which does not belong to him, whether it constitutes or not a part of a registered mark. To determine such imitation as is alluded to in numbers 4 to 7, inclusive, of this article, it is not necessary that the similarity of the mark be complete; it will be sufficient that there be a possibility of error or confusion, in accordance with the exposition of number 6 of article 8. Usurpation of a commercial name or that of a firm, treated in number 7 of the present article, will be considered as existing whether the reproduction be complete or whether there be omissions, additions, or alterations, provided that there exist the same possibility of error or confusion on the part of the consumer.
Smaller fine for minor offenses.
Article 11. A fine of $50 gold, to be turned into the treasury, shall be imposed upon: First, anyone who, without due authorization, shall use on a trademark the coat of arms, genealogical insignia or insignia of a public or official, national or foreign character; second, anyone who shall use trade-marks which offend public decorum; third, anyone who shall use a trade-mark with indications of a locality or establishment not that of the place whence comes the merchandise or product, whether to this indication is united or not the name of another or a fictitious one; fourth, anyone who sells or offers for sale any article of merchandise or product which may bear marks such as indicated in numbers 1, 2, and 3 of this article, provided he can not justify the manner of its derivation; fifth, anyone who shall use a trade-mark containing anything personally offensive or anyone who sells or offers for sale articles which display such marks.
Article 12. Judicial action as a result of the offenses mentioned in the preceding article shall be started by the fiscal attorney of the district where products are found displaying aforesaid trade-marks. The owner of the establishment falsely reproduced, as well as any dealer or manufacturer engaged in the same business, shall possess the right to register a complaint against the infractors mentioned in number 3 of article 11.
Article 13. Recurrence of the offense will be punished by the doubling of the fine. A recurrence of the offense shall be said to exist when, after due warning, there shall be judgment pronounced against the offender within a following period of five years for a crime set forth in the present law.
Article 14. The above-mentioned fines do not exempt delinquents from the payment of damages and injuries to which the suit for claims instituted by the interested parties may give rise.
Rights of trade-mark owners.
Article 15. The person interested may demand: First, that there be instituted an investigation or examination to determine the existence of falsified or imitated trade-marks or of merchandise which bear such marks; second, the seizure or destruction of the falsified or imitated marks in the shops where they are manufactured or wherever they are found before being put into use; third, the seizure and deposit of merchandise or products which bear marks similar to those denominated under numbers 1, 2, 3, 4, 5, and 6 of article 6.
Article 16. Seized articles shall serve as a guaranty of the payment of the fine and the indemnification due the interested party, and to that end, after the destruction of their trade-marks, they shall be sold at public auction during the hearing or lawsuit if they are liable to damage or deterioration, or, otherwise, during the execution of the law, an exception being made of those products which are harmful to public health, in which case they shall be destroyed.
Article 17. The seizure or attachment of falsified products which display a false trade-mark or a legitimate one used fraudulently shall constitute the basis for the lawsuit.
Article 18. Attachment or seizure shall be brought about upon the requisition: First, of the party most concerned; second, of the fiscal attorney of the district where the falsified merchandise or products are found; third, of the tax collectors, provided that falsified articles are found in the establishments visited by them; and by any authority who, upon search, shall find falsified trade-marks or articles.
[Page 382]Court procedure.
Article 19. When the seizure is brought about by the accusation of some authority, the owners of the trade-marks or their representatives shall be notified to the end that they may begin action against the guilty parties, a period of thirty days being granted them for this purpose, under pain of the annulment of the seizure in favor of the complainant.
Article 20. The appropriate court for the hearings or the lawsuits referred to by this law is that of the place of residence of the plaintiff or that of the place where the merchandise showing falsified or imitated marks or a legitimate mark used illegally are found.
Article 21. Foreigners and natives whose establishments are located outside of the Republic may enjoy the benefits of this law, if it be permitted by reciprocal diplomatic agreements celebrated between the Dominican Government and that of the place of the establishments.
Article 22. The guaranties and obligations contained in this law shall be applicable to trade-marks registered previous to it.
Article 23. This law annuls that part of any other which may be contrary to it.