TITLE 21. SECURITIES AND RETAIL FRANCHISING

STATE CORPORATION COMMISSION

REGISTRAR'S NOTICE: The State Corporation Commission is exempt from the Administrative Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Constitution is expressly granted any of the powers of a court of record.

Proposed Regulation

Title of Regulation: 21VAC5-120. Virginia Trademark and Service Mark Act (amending 21VAC5-120-100).

Statutory Authority: §§ 12.1-13 and 59.1-92.19 of the Code of Virginia.

Public Hearing Information: A public hearing will be scheduled upon request.

Public Comments: Public comments may be submitted until 5 p.m. on August 31, 2009.

Agency Contact: Al Hughes, Registration Chief, Securities Division, State Corporation Commission, Tyler Building, 9th Floor, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9415, FAX (804) 371-9911, or email al.hughes@scc.virginia.gov.

Summary:

The proposed amendment modifies the class of services with which a mark can actually be used, to include services for providing food and drink; medical services; veterinary services; hygienic and beauty care services; agricultural, horticulture, and forestry services; legal services; security services for the protection of property and individuals; and personal and social services rendered by others to meet the needs of individuals. Additional minor revisions and updates are also included.

AT RICHMOND, JULY 28, 2009

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. SEC-2009-00067

Ex Parte: In the matter of Adopting
a Revision to the Rules Governing
the Trademark and Service Mark Act

ORDER TO TAKE NOTICE

Section 12.1-13 of the Code of Virginia provides that the State Corporation Commission ("Commission") shall have the power to promulgate rules and regulations in the enforcement and administration of all laws within its jurisdiction. Section 59.1-92.19 of the Virginia Trademark and Service Mark Act ("Act"), § 59.1-92.1 et seq. of the Code of Virginia provides that the Commission may issue any rules and regulations necessary or appropriate for the administration and enforcement of the Act.

The rules and regulations issued by the Commission pursuant to the Act are set forth in Title 21 of the Virginia Administrative Code. A copy also may be found at the Commission's website: www.scc.virginia.gov/case.

The Division of Securities and Retail Franchising ("Division") has submitted to the Commission proposed revisions to Chapter 120 of Title 21 of the Virginia Administrative Code entitled "Rules and Forms Governing Virginia Trademark and Service Mark Act" ("Rules").

Proposed amendment to Rule 21 VAC 5-120-100 modifies the class of services with which a mark can actually be used to include services for providing food and drink, medical services, veterinary services, hygienic and beauty care services, agricultural, horticulture and forestry services, legal services, security services for the protection of property and individuals, and personal and social services rendered by others to meet the needs of individuals.

The Division has recommended to the Commission that the proposed revisions should be considered for adoption with a proposed effective date of November 15, 2009. The Division also has recommended to the Commission that a hearing should be held only if requested by those interested parties who specifically indicate that a hearing is necessary and the reasons therefor.

A copy of the proposed revisions may be requested by interested parties from the Division by telephone, mail, or e-mail request and also can be found at the Division's website: www.scc.virginia.gov/srf. Any comments to the proposed rules must be received by August 31, 2009.  If a hearing is requested, the hearing must be scheduled on September 29, 2009.

IT IS THEREFORE ORDERED THAT:

(1) The proposed revisions are appended hereto and made a part of the record herein.

(2) Comments or requests for hearing on the proposed revisions must be submitted in writing to Joel H. Peck, Clerk of the Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218, on or before August 31, 2009. Requests for hearing shall state why a hearing is necessary and why the issues cannot be adequately addressed in written comments. All correspondence shall contain reference to Case No. SEC-2009-00067. Interested persons desiring to submit comments electronically may do so by following the instructions available at the Commission's website: http://www.scc.virginia.gov/case.

(3) If the Commission grants any request for hearing in connection with the proposed amendments to the Rules, it will enter a subsequent order scheduling the hearing on September 29, 2009, and that order will be posted on the Commission's website at http://www.scc.virginia.gov/case and on the Division's website at http://www.scc.virginia.gov/srf.  If no request for hearing is received, the Commission may consider the matter and enter an order based upon the papers filed herein.

(4) On or before September 15, 2009, the Division shall file a response to any comments that are filed in this proceeding and that response will be posted on the Commission's website at http://www.scc.virginia.gov/case and on the Division's website at http://www.scc.virginia.gov/srf.

(5) The proposed revisions shall be posted on the Commission's website at http://www.scc.virginia.gov/case and on the Division's website at http://www.scc.virginia.gov/srf.  Interested persons may also request a copy of the proposed revisions from the Division by telephone, mail, or e-mail.

AN ATTESTED COPY HEREOF, together with a copy of the proposed revisions, shall be sent to the Registrar of Regulations for publication in the Virginia Register.

AN ATTESTED COPY hereof shall be sent to the Division's Director, who shall forthwith provide notice of this Order via U.S. mail and e-mail to any interested persons as he may designate.

Part III
Classification of Goods and Services

21VAC5-120-100. Classification of goods and services.

The application for registration or renewal of registration of a mark shall identify the class(es) class or classes of goods or services with which the mark is actually being used. The following classes of goods and services are established for convenience of administration of the Act:

Goods.

1. Chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry; unprocessed artificial resins; unprocessed plastics; manures; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; and adhesives used in industry.

2. Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colorants; mordants; raw natural resins; and metals in foil and powder form for painters, decorators, printers, and artists.

3. Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps, ; perfumery, essential oils, cosmetics, hair lotions; and dentifrices.

4. Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and illuminants; and candles, and wicks for lighting.

5. Pharmaceutical, and veterinary and preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax,; disinfectants; preparations for destroying vermin; and fungicides, and herbicides.

6. Common metals and their alloys; metal building materials; transportable buildings of metal; materials of metal for railway tracks; nonelectric cables and wires of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; and ores.

7. Machines and machine tools; motors and engines (except for land vehicles); machine coupling and transmission components (except for land vehicles); agricultural implements other than hand operated; and incubators for eggs.

8. Hand tools and implements (hand operated); cutlery; side arms; and razors.

9. Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating, or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin operated apparatus; cash registers, calculating machines, data processing equipment and computers; and fire-extinguishing apparatus.

10. Surgical, medical, dental and veterinary apparatus and instruments; artificial limbs, eyes and teeth; orthopedic articles; and suture materials.

11. Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes.

12. Vehicles; and apparatus for locomotion by land, air, or water.

13. Firearms; ammunition and projectiles; explosives, ; and fireworks.

14. Precious metals and their alloys and goods in precious metals or coated therewith in precious metals, not included in other classes; jewelry, precious stones; and horological and chronometric instruments.

15. Musical instruments.

16. Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery,; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); playing cards plastic materials for packaging (not included in other classes); printer's type; and printing blocks.

17. Rubber, gutta-percha, gum asbestos, mica and goods made from these materials and not included in other classes; plastics in extruded form for use in manufacture; packing, stopping and insulating materials; and flexible pipes not of metal.

18. Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; hides; trunks and travelling bags; umbrellas, parasols and walking sticks; and whips, harness and saddlery.

19. Building materials (nonmetallic); nonmetallic rigid pipes for building; asphalt, pitch and bitumen; nonmetallic transportable buildings; and monuments, not of metal.

20. Furniture;, mirrors;, and picture frames; and goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

21. Household or kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semiworked glass (except glass used in building); and glassware, porcelain and earthenware not included in other classes.

22. Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics); and raw fibrous textile materials.

23. Yarns and thread threads for textile use.

24. Textiles and textile goods, not included in other classes; and bed and table covers.

25. Clothing, footwear, and headgear.

26. Lace and embroidery; ribbons and braid; buttons, hooks and eyes, pins and needles; and artificial flowers.

27. Carpets, rugs, mats and matting; linoleum and other materials for covering existing floors; and wall hangings (nontextile).

28. Games and playthings; gymnastic and sporting articles not included in other classes; and decorations for Christmas trees.

29. Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces compotes; eggs, milk and milk products; and edible oils and fats.

30. Coffee, tea, cocoa, sugar, rice, tapioca, sago, and artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery; ices; honey; treacle; yeast; baking powder; salt; mustard; vinegar; sauces (condiments); spices; and ice.

31. Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds;, natural plants and flowers; foodstuffs for animals; and malt.

32. Beer, mineral and aerated waters and other nonalcoholic drinks, fruit drinks and fruit juices; and syrups and other preparations for making beverages.

33. Alcoholic beverages (except beers).

34. Tobacco, smokers smokers' articles; and matches.

Services.

35. Advertising; business management; business administration; and office functions.

36. Insurance, financial affairs; monetary affairs; and real estate affairs.

37. Building construction; repair, and installation services.

38. Telecommunications.

39. Transport; packaging and storage of goods; and travel arrangement.

40. Treatment of materials.

41. Education; providing of: training,; entertainment; and sporting and cultural activities.

42. Providing of food and drink; temporary accommodation; medical, hygienic and beauty care; veterinary and agricultural services; legal services; scientific and industrial research; computer programming; services that cannot be placed in other classes Scientific and technological services and research and design relating thereto; industrial analysis and research services; and design and development of computer hardware and software.

43. Services for providing food and drink; and temporary accommodations.

44. Medical services; veterinary services; hygienic and beauty care for human beings or animals; and agriculture, horticulture, and forestry services.

45. Legal services; security services for the protection of property and individuals; and personal and social services rendered by others to meet the needs of individuals.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

FORMS (21VAC5-120)

Form TM 1, Application for Registration of a Trademark or Service Mark (eff. 7/98) 11/09).

Form TM 2, Application for Renewal of Registration of a Trademark or Service Mark (eff. 7/98) 11/09).

Form TM 3, Certificate of Name Change of an Applicant or Registrant (eff. 7/98) 11/09).

VA.R. Doc. No. R09-2017; Filed July 29, 2009, 10:42 a.m.