A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered which:

(1) Consists of or comprises immoral, deceptive or scandalous matter.

(2) Consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute.

(3) Consists of or comprises the flag or coat of arms or other insignia of the United States, the Commonwealth of Pennsylvania, or of any other state or municipality, or of any foreign nation, or any simulation thereof.

(4) Consists of or comprises the name, signature or portrait identifying a particular living individual, except by the individual's written consent.

(5) Consists of a mark which:

(i) when used on or in connection with the goods or services of the applicant is merely descriptive or deceptively misdescriptive of them;

(ii) when used on or in connection with the goods or services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them; or

(iii) is primarily merely a surname.

Nothing in this paragraph shall prevent the registration of a mark used in this Commonwealth by the applicant which has become distinctive of the goods or services of the applicant. The department may accept as evidence that the mark has become distinctive as used on or in connection with the goods or services of the applicant, proof of continuous use thereof as a mark by the applicant in this Commonwealth for the five years before the date on which the claim of distinctiveness is made.

(6) Consists of or comprises a mark which so resembles a mark registered in this Commonwealth or a mark or trade name previously used in this Commonwealth by another and not abandoned, as to be likely, when used or in connection with the goods or services of the applicant, to cause confusion or mistake or to deceive, unless it shall be proved to the satisfaction of the department that the person last applying for the registry of such mark is entitled thereto and is the owner thereof by right of prior adoption and use, in which case the date of the adoption shall determine the ownership, and shall be proved by verified statements of persons conversant with such dates. In case the department becomes satisfied after a hearing held as provided by section 1116(5) (relating to cancellation) that the person last applying for registry is entitled by priority of adoption and use in this Commonwealth to register such mark, it shall revoke the first registry thereof and, upon application and the payment of the fee, register the same in the name of such applicant.

(June 18, 1998, P.L.518, No.73, eff. 60 days)