§8-12-7. Registrability.

(a) A mark by which the goods, services, or business of any applicant for registration may be distinguished from the goods, services, or business of others shall not be registered if it:

(1) Consists of or comprises immoral, deceptive, or scandalous matter;

(2) Consists of or comprises matter which may disparage or falsely suggest a connection with a person, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute;

(3) Consist of or comprises the flag or coat of arms or other insignia of the United States, of any state or municipality or of any foreign nation, or any simulation thereof;

(4) Consists of, comprises or includes the name, signature, or portrait of any living individual, except with his written consent;

(5) Consists of a mark which:

a. When applied to the goods, services, or business of the applicant, is merely descriptive or deceptively misdescriptive of them; or

b. When applied to the goods, services, or business of the applicant is primarily geographically descriptive or deceptively misdescriptive of them; or

c. Is primarily merely a surname;

provided, however, that nothing in this subdivision shall prevent the registration of a mark used in this state by the applicant which has become distinctive of the applicant's goods, services, or business. The Secretary of State may accept as evidence that the mark has become distinctive, as applied to the applicant's goods, services, or business, proof of continuous use thereof as a mark by the applicant in this state or elsewhere for the five years next preceding the date of the filing of the application for registration; or

(6) Consists of or comprises a mark which so resembles a mark registered in this state or a mark previously used in this state by another and not abandoned, as to be likely, where applied to the goods, services, or business of the applicant, to cause confusion or mistake or to deceive. Such a mark may be registered when the prior registrant or assignee, or the previous user of the mark gives his written consent, and the parties identify by affidavit their respective separate geographic markets and state that neither plans to expand into the other's market.

(b) Neither the issuance of a certificate of incorporation to a domestic corporation or a certificate of authority to a foreign corporation or a certificate of registration to a foreign limited partnership, nor the reservation or registration of a corporate name bestows any rights of ownership in a mark, and the issuance to another of a certificate of incorporation, a certificate of authority, a certificate of registration of a foreign limited partnership, a certificate of reservation of corporate name, or a certificate of registration of corporate name shall not serve as the basis for refusing registration of a mark.

(Acts 1980, No. 80-166, p. 236, §2; Acts 1988, 1st Ex. Sess., No. 88-924, p. 526, §1.)