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A trademark registration application filed by a foreign national "shall be accorded the same force and effect as would be accorded to the same application if filed in the United States on the same date on which the application was first filed in [the] foreign country.” 15 U.S.C.S. 44(b).
Defendant, a foreign corporation, filed a trademark application in its home country for its beverages. Before it filed its United States application, plaintiff began using the trademark. The U.S. Patent Office then issued a registration to defendant for the trademarks. Plaintiff filed suit seeking to cancel defendant s registrations. The lower court granted summary judgment for plaintiff, on the ground that prior right in a trademark in the U.S. depended on priority of use in the U.S. and was not affected by priority of use in a foreign country. Defendant appealed.
Under the circumstances, was the defendant entitled to a trademark registration?
On appeal, the court reversed and dismissed the complaint. The court held that the Lanham Act, 15 U.S.C.S. §44(d), granted a foreign applicant, that used the trademark in its home country after the foreign filing but before the U.S. filing, a constructive use as of the date of the foreign filing. Thus, defendant was entitled to a trademark registration.