U.S. Trademark Registration: A Guide for Brand Owners

Trademark, copyright or patent?

Note 1

Choosing a mark that can register

The USPTO says creative and unique marks are more effective and easier to protect than marks that merely describe the goods. Rights attach to the mark as used for specific goods or services, not to the word in general.

• Fanciful or arbitrary marks, such as an invented word or a real word unrelated to the product, are the strongest.
• Suggestive marks hint at a quality and can usually register.
• Descriptive marks, surnames and place names usually cannot go on the Principal Register until they acquire distinctiveness. Five years of substantially exclusive and continuous use can be accepted as prima facie evidence of it (15 U.S.C. §1052(f)).
• Generic terms for the product itself cannot be registered.
• Other owners' famous marks are risky even for unrelated goods, because of dilution claims (15 U.S.C. §1125(c)).

Search before you file

The USPTO refuses an application that is likely to be confused with an earlier registered or pending mark. Marks do not have to be identical: similar sound, appearance, meaning or commercial impression can be enough, if the goods or services are related.

Search the USPTO's Trademark Search system, which replaced the older TESS tool. Include variant spellings, phonetic equivalents, translations and coordinated classes. A clothing brand in Class 25, for example, should also check related retail services in Class 35.

The federal database does not show unregistered common-law users. The USPTO encourages applicants to also search the internet, state trademark databases and business-name records.

Filing bases

Note 2

From filing to registration

1. File in Trademark Center with the correct owner, domicile address, drawing and identification of goods and services.
2. An examining attorney reviews the application. The first action arrives in 4.3 months on average (USPTO target: 5.0 months; data as of 1 October 2026).
3. If you receive an office action, reply within 3 months; one 3-month extension costs $125. Madrid applicants get 6 months, with no extension.
4. Approved marks are published in the Official Gazette. Anyone who believes they would be damaged has 30 days to oppose or to ask for more time.
5. Use-based marks then register. Intent-to-use marks receive a Notice of Allowance and need a Statement of Use. Filing to registration or abandonment averages 10.4 months.

USPTO fees (16 October 2026)

Note 3

Principal or Supplemental Register

Marks that can distinguish goods but are not yet distinctive, such as many descriptive marks, can register on the Supplemental Register. It is a real registration, but 15 U.S.C. §1094 withholds several benefits.

Note 4

Rights without registration (common law)

You own a trademark as soon as you use it with your goods or services, but those rights are limited to the geographic area where you trade. A federal registration creates rights throughout the United States and its territories.

Common-law rights last as long as you keep using the mark. They are harder to prove: you need evidence of where, since when and how widely you used it.

A federal registration on the Principal Register gives nationwide constructive notice of the owner's claim (§1072), so a later user cannot claim good faith by saying it did not know.

Someone who used the mark before your filing date may keep rights in the area of that earlier use, and may challenge your registration.

Keeping the registration alive

• Between years 5 and 6: a Section 8 declaration of use or excusable non-use. A Section 15 incontestability declaration can be combined with it if you have 5 years of continuous use.
• Between years 9 and 10: a combined Sections 8 and 9 declaration and renewal.
• Every 10 years after that: Sections 8 and 9 again.
• Grace period: 6 months after each deadline, with a surcharge. After that, the registration is cancelled or expires and you must start again.
• Madrid-based registrations (serial numbers starting with 79) file Section 71 declarations with the USPTO and renew the international registration with WIPO every 10 years.

Delete goods or services you no longer sell before you file a maintenance document. A Section 7 deletion before filing costs nothing, while deletions after filing cost $250 per class. Treat official-looking mail that does not come from an @uspto.gov address with suspicion.

Surrendering a registration

The owner can ask the USPTO to cancel a registration by surrender at any time (15 U.S.C. §1057(e)). The record then shows the mark as cancelled.

If a cancellation proceeding is pending before the Trademark Trial and Appeal Board, a surrender without the written consent of every adverse party leads to judgment against the owner (37 CFR 2.134(a)).

Surrender ends the federal registration, not the common-law rights you hold from actual use.