Can I File a Trademark Application Before I Start Doing Business?

Picture of trademark rubber stamp in the office

A trademark protects the specific, unique name, logo, and symbols regarding your products or business brand. A trademark is pivotal to the marketing and public relations aspect of your goods, services, and business brand. The United States Patents and Trademarks Office (USPTO) is the governmental agency in charge of registering any trademark you wish to file an application for. To answer this question in short, yes, you can file a trademark application before you start your business, but certain requirements must be met.

What Can You Trademark?

The USPTO also allows you to trademark sounds, colors, or smells, in relation to your specific and unique name, logo, or symbol. For instance, the company Hasbro has trademarked the Play-Doh smell of the Play-Doh toys as a result of the unique smell deriving from its toys that after decades in business have been associated with the company and its products.

How Do I Register My Trademark?

Initially, you can register your trademark with the USPTO. This process is relatively easy, and the application can be done in a single day. However, as a result of the recent COVID-19 pandemic, the trademark application processing time has gone from approximately 3-6 months to approximately a year.

Now, you’re probably wondering—how much is this going to cost me? There are two payment options for trademark registration offered by the USPTO: (1) TEAS Plus and (2) TEAS Standard. The TEAS Plus costs $250 per class of goods/services meanwhile TEAS Standard costs $350 per class of goods/services. However, there are other additional fees, including post-registration fees, that depending on your specific trademark must be paid by the registrant. These fees can range from $100 per class to $525 per class.

What if I Have Not Started Doing Business Yet?

If you have not started doing business yet, this is completely fine. The USPTO trademark application gives you two filing options: (1) when the mark is being used in commerce and (2) when the mark has not yet been used in commerce but will be in the future. The second option is called an Intent-To-Use trademark application.

Normally you can’t register a trademark for non-business purposes or without a business; however, if you have a business up and running and are still in the process of linking the trademark with the goods or service, you can apply your trademark under the second category and the USPTO will give you a year to gather evidence, or specimens, to show that you are using the mark with your goods or services. Nevertheless, if after a year you have not gathered enough evidence, you can also apply for an extension which gives you six more months to gather enough evidence of your use of the mark.

What Does it Mean to Use My Mark in Commerce?

When the USPTO refers to using your mark in commerce it means that you are using your mark in a way that allows either your customers or future customers to associate your mark with your goods or services. For instance, let’s say you own a Cuban coffee shop called: La Croqueta, and you have a logo with a white coffee shot plastic cup with croquette on top on a black background; let’s also say that you use this name and logo on your menus, business cards, merchandise, website, UberEATS or other food delivery apps, where you can clearly see what goods you are providing, Cuban food, with your name and logo. This example is the type of evidence that a USPTO examiner would be looking for as evidence to your using of your trademark in commerce.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Benjamin Bedrava


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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