303.02    Meaning of the Term " Person "

The term "person," as used in the Trademark Act, includes both natural and juristic persons. [ Note 1.] A juristic person is a "firm, corporation, union, association, or other organization capable of suing and being sued in a court of law." [ Note 2.]

If an operating division of a corporation is not itself incorporated or is not otherwise a legal entity which can sue and be sued, it does not have legal standing to own a mark or to file an application for registration, an opposition, or a petition for cancellation. [ Note 3.] See TMEP § 1201.02(d) ("An operating division’s use is considered to be use by the applicant…."). In such a case, the application, opposition, or petition for cancellation should be filed in the name of the corporation of which the division is a part. If an opposition or a petition for cancellation is filed in the name of a division, and there is no indication that the division is incorporated, where the issue is presented in connection with a discovery conference or a motion, the Board may inquire as to whether the division is incorporated or is otherwise a legal entity that can sue and be sued. If the opposer or petitioner responds in the negative, the opposition or petition for cancellation will go forward in the name of the corporation of which the division is a part. [ Note 4.] See TMEP § 1201.02(d).

The term "person" as used in the Trademark Act also includes the United States, any agency and instrumentality thereof, or any individual, firm or corporation which acts for the United States and with the authorization and consent of the United States, as well as any state, any instrumentality of a state, and any officer or employee of a state or instrumentality of a state acting in his or her official capacity. [ Note 5.]

NOTES:

 1.   Trademark Act § 45, 15 U.S.C. § 1127. Cf. 37 CFR § 2.2(b).

 2.   Trademark Act § 45, 15 U.S.C. § 1127. See Opryland USA Inc. v. The Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1475 (Fed. Cir. 1992) (a "person" may be a corporation or other entity); Morehouse Manufacturing Corp. v. J. Strickland and Co., 407 F.2d 881, 160 USPQ 715, 720-21 (CCPA 1969) (a corporation is a "person" within the meaning of Trademark Act § 45, 15 U.S.C. § 1127and can base an opposition on Trademark Act § 2(a), 15 U.S.C. § 1052(a)); Aruba v. Excelsior Inc., 5 USPQ2d 1685, 1686 n.2 (TTAB 1987) (Commonwealth of Aruba is a "person" within the meaning of Trademark Act §§ 13 and 45, 15 U.S.C. §§ 1063 and 1127); U.S. Navy v. United States Manufacturing Co., 2 USPQ2d 1254, 1257 (TTAB 1987) (U.S. Navy is a juristic person within the meaning of Trademark Act § 45, 15 U.S.C. § 1127); Board of Trustees of the University of Alabama v. BAMA-Werke Curt Baumann, 231 USPQ 408, 410 n.6 (TTAB 1986) (Alabama Board of Trustees, a corporate body, may be considered either a "person" or an "institution" within the meaning of Trademark Act § 2(a),15 U.S.C. § 1052(a)); Consolidated Natural Gas Co. v. CNG Fuel Systems, Ltd., 228 USPQ 752, 754 n.2 (TTAB 1985) (corporations as well as individuals are "persons" for purposes of Trademark Act § 2(a),15 U.S.C. § 1052(a)); In re Mohawk Air Services Inc., 196 USPQ 851, 855 (TTAB 1977) (a government agency is a juristic person and as such may file an application for registration, an opposition, or a petition for cancellation).

 3.   See In re Cambridge Digital Systems, 1 USPQ2d 1659, 1660 n.1 (TTAB 1986).

 4.   Cf. In re Cambridge Digital Systems, 1 USPQ2d 1659, 1660 n.1 (TTAB 1986) (because applicant was merely a division, Board noted that should it ultimately prevail, "this defect may be corrected by an amendment supported by a verification or declaration by the real applicant").

 5.   Trademark Act § 45, 15 U.S.C. § 1127.