Nebraska § 87-128 - Terms, defined.

§ 87-128. Terms, defined.

For purposes of the Trademark Registration Act:

(1) Abandoned mark means that either of the following has occurred:

(a) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years shall constitute prima facie evidence of abandonment; or

(b) 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;

(2) Applicant means the person filing an application for registration of a mark under the act and the legal representatives, successors, or assigns of such person;

(3) Dilution means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (a) competition between the owner of the famous mark and other parties or (b) likelihood of confusion, mistake, or deception;

(4) Mark includes any trademark or service mark, entitled to registration under the act, whether registered or not;

(5) Person and any other word or term used to designate the applicant or other party entitled to a benefit or privilege or rendered liable under the act includes an individual, a firm, a partnership, a limited liability company, a corporation, a union, an association, or another organization capable of suing and being sued in a court of law;

(6) Registrant means the person to whom the registration of a mark under the act is issued and the legal representatives, successors, or assigns of such person;

(7) Secretary means the Secretary of State or the designee of the secretary charged with the administration of the act;

(8) Service mark means any word, name, symbol, or device or any combination thereof used by a person, to identify and distinguish the services of one person, including a unique service, from the services of others, and to indicate the source of the services, even if that source is unknown. Titles, character names used by a person, and other distinctive features of radio or television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor;

(9) Trade name means any name used by a person to identify a business or vocation of such person;

(10) Trademark means any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish the goods of such person, including a unique product, from those manufactured or sold by others, and to indicate the source of the goods, even if that source is unknown; and

(11) Use means the bona fide use of a mark in the ordinary course of trade and not made merely to reserve a right in a mark. A mark shall be deemed to be in use:

(a) On goods when it is placed in any manner on the goods or other containers, associated displays, or tags or labels or, if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale and the goods are sold or transported in commerce in this state; and

(b) On services when it is used or displayed in the sale or advertising of services and the services are rendered in this state.

Pursuant to subsection (1) of this section, the statutory hallmarks of an abandoned service or trademark are (a) when its use has been discontinued with intent not to resume such use, which may be inferred from the circumstances, or its nonuse for 2 consecutive years shall constitute prima facie evidence of abandonment or (b) 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. ADT Security Servs. v. A/C Security Systems, 15 Neb. App. 666, 736 N.W.2d 737 (2007).