| (a) An applicant may seek registration of a mark, otherwise
unregistrable by reason of §16.051(a)(5)(A), (B), or (6) of the
Business & Commerce Code, which the applicant believes has become
distinctive as applied to the applicant's goods and/or services. To
support the claim of distinctiveness the applicant may submit:
(1) evidence of prior registrations with the Secretary
of State of the same or similar marks owned by the applicant or applicant's
predecessor in interest;
(2) actual evidence of acquired distinctiveness; or
(3) a sworn statement of the applicant's substantially
exclusive and continuous use of the mark for the five years preceding
the date on which the applicant filed its application for registration.
(b) Types of evidence that may be submitted to support
a claim of distinctiveness may include sworn affidavits, depositions,
or other evidence showing duration, extent, and nature of use of the
mark. The applicant also may submit evidence of advertising expenditures
made in connection with the mark; the evidence should identify the
types of media and should include typical advertisements. Additional
evidence may include affidavits, letters, or statements from the trade
or public. Sworn statements in the application may, in appropriate
cases, be accepted as prima facie evidence of distinctiveness.
(c) After reviewing evidence submitted to support a
claim of distinctiveness, the trademark examiner may require further
evidence, or may determine that the mark is so generic or highly descriptive
as applied to the applicant's goods and/or services that the mark
cannot be registered regardless of the amount of evidence provided.
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