Trademarks + The Law Archives - Michael E. Kondoudis

How to Trademark a Phrase for Free: An EASY Guide

July 27, 2023 by Michael Kondoudis

You can trademark a phrase for free with a “common law” trademark, but it will have serious limitations. If you plan to expand your business into multiple markets, you should consider registering your trademark with the USPTO. However, you cannot register a trademark for a phrase for free.

By Michael Kondoudis, Small Business Trademark Attorney

This is our EASY guide to trademarking a phrase for free.

You may have heard that you can trademark a phrase (or slogan) for free. Is this true? The answer is both yes and no.

It is possible to get some trademark rights just by using a phrase as a trademark. But, those rights are limited and pale in comparison to the rights that come with registering a trademark with the U.S. Patent and Trademark Office.

In this post, I’ll explain exactly how to trademark a phrase for free, and this information applies to names and logos as well.

So, if you want to learn how to trademark a phrase for free, this guide is for you.

Let’s get started!

U.S. Trademark No. 1,151,224 for DON’T LEAVE HOME WITHOUT IT

CONTENTS

Part I. Trademarking for free

Part II. All about common law trademarks

Part III. How to get common law trademark rights

Part IV. All about registered trademarks

Part V. How to register a trademark for free

I. TRADEMARKING FOR FREE

How to Trademark a Phrase for Free

You can trademark a phrase for free using a common law trademark. A common law trademark can be a great way to protect your phrase without incurring the cost of registration.

Can You Trademark a Phrase for Free?

Yes, you can trademark a phrase for free by establishing a “common law” trademark through use of the phrase in commerce. This means using the phrase to brand your company, business, product, or service. You cannot register the phrase for free, however, because the U.S. Patent and Trademark Office charges a filing fee for every new trademark application. So, there is always a fee to register a phrase.

Is There Such a Thing as Free Trademark?

Yes, you can establish a common law trademark for free. A trademark registration is never free, however. The U.S. Patent and Trademark Office charges a “filing fee” for every application, including applications for phrases.

II. COMMON LAW TRADEMARKS

What is a Common Law Trademark?

A common law trademark is not registered with the USPTO but is instead established through use in commerce and taking steps to prevent others from using it. Stated differently, common law trademarks are based on use rather than through registration.

Common law trademarks are not registered with the government but are still protected under the law.

Common law trademark rights can be limited in scope and protection compared to registered trademarks. For example, common law trademark rights only extend to the geographic areas where the mark is actively used and recognized by consumers. Registered trademarks extend to all 50 States.

Stop Worrying About Your Trademark

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See How My Law Firm Can Help You Protect Your Trademark

New Applications – Legally own your trademark.

Office Actions – We can navigate the trademarking process at the USPTO.

Enforcement – Flex your trademark rights. Stop copycats.

The Benefits of a “Free” Common Law Trademarks

There are several benefits to common law trademarks.

First, common law trademarks are easier to get than registered (federal) trademarks. There are far fewer requirements. To get common law trademark rights you just need to use a phrase to brand a company, product, or service.

Second, common law trademarks are much less costly than registered trademarks. It is less expensive to establish a common law trademark than to register one with the U.S. Patent and Trademark Office (USPTO).

Third, common law trademark rights can be established much faster than registered trademarks. Trademark registration can take over a year.

Want to trademark a catchphrase?

The Limitations of a “Free” Common Law Trademark

Common law trademarks can provide modest protection for businesses, but they have limitations. The two most important limitations of common law trademarks relate to geography and enforcement.

Geography: Common law trademark rights are limited to the geographic area where a mark is used. They are not national like registered trademarks. That means that other businesses outside of your local region could use your phrase or slogan, and you would be unable to stop them.

Enforcement: Enforcing common law trademarks is far more difficult and costly than it is for registered trademarks. For example, a trademark owner must prove ownership, validity, and regions of use. In contrast, with registered federal trademarks, these elements of infringement are legally presumed, so enforcement is easier and less expensive. Also, it is presumed that a registered federal trademark is recognized as representing a brand.

III. HOW TO GET A COMMON LAW TRADEMARK

How to Establish a Common Law Trademark

To establish a common law trademark, including a common law trademark for a phrase, you will need to:

1. Use the phrase as a trademark (brand) in commerce; and

2. Demonstrate that it has “secondary meaning,” which is to say that it has become associated with your brand in the minds of consumers.

Use in commerce

You have to use the phraase in a way that identifies it as being associated with your goods or services. For example, you could use the phrase on packaging, labels, signage, or advertisements.

Secondary meaning

This can be shown by promoting the phrase through advertising and marketing and ensuring that it is used consistently across all your business’s communications. This can be done by showing that the mark has been in continuous use for a period of time or that it has become well-known among consumers.

IV. ABOUT REGISTERED TRADEMARKS

What is a Registered Trademark?

A Federal trademark is an enhanced trademark certified by the U.S. government. It’s an enhanced trademark because it comes with exclusivity and nationwide legal rights, preventing anyone else from registering anything similar for your industry.

The United States Patent and Trademark Office (or “USPTO”) is the Federal agency that registers trademarks.

What Are The Benefits of a Registered Trademark?

Federal trademark registration is the ultimate protection for any brand. There is no higher level. That makes a Federal trademark the best insurance against having to rebrand.

Here are just some of the reasons why:

A registered federal trademark is an official confirmation that you own your trademark.
A registered federal trademark comes with the immediate, exclusive, and nationwide right to use your mark.
A registered federal trademark will prevent anyone else from registering it (or anything similar) in your industry.
A registered federal trademark gives you enhanced protection for domain names and social media platforms and access to Amazon’s brand registry.
A registered federal trademark gives you the legal right to use the ® symbol.

Read about ALL of the legal and financial benefits of trademark registration here.

V. HOW TO REGISTER A TRADEMARK FOR FREE

How to Register a Trademark for Free

You cannot register a trademark for free because every application filed with the U.S. Patent and Trademark Office (“USPTO”) must be accompanied by a non-refundable filing fee. This fee is mandatory and is non-refundable. The USPTO filing fee is $250 or $350 per class of goods or services. Therefore, while it is possible to register a trademark without hiring a lawyer, it can never be free.

Can You Register a Trademark for Free?

No, you cannot register a trademark for free because the U.S. Patent and Trademark Office (“USPTO”) charges a filing fee for every application it receives.

Is There Such a Thing as Free Trademark Registration?

No. To register a trademark, you must pay a non-refundable government filing fee to the United States Patent and Trademark Office (“USPTO”). So, free trademark at the federal level is not an option.

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Registration Is The Best Way to Protect Your Trademark

Peace of Mind – Official confirmation that you legally own your trademark

Exclusivity – Prevent competitors from registering your mark and taking it from you.

Distinction – Use the ® symbol and stand out from the competition.

How Much Does Trademark Registration Cost?

Currently, the U.S. Patent and Trademark Office charges a filing fee for every application. The current filing fee is at least $250 per application, and often more when many products or services are listed in the application.

The average cost is between $275 and $400 to file a trademark application with the USPTO. However, the actual cost will depend on several factors, including the complexity of the application. Ultimately, the cost of trademark registration will vary depending on the specifics of your situation.

VI. SUMMARY

In the United States, you can establish “common law” trademark rights in a phrase just by using it to brand your company, products, and/or services. Common law trademark rights are limited and difficult to enforce, however.

The best way to protect a trademark, including a phrase, is to register it with the U.S. Patent and Trademark Office (USPTO). Trademark registration is the way to make sure that no one else registers your mark and takes it from you.

The process of registering a trademark includes filing an application with the USPTO and the USPTO charges a filing fee for every new trademark application. The application fee is currently $250 per class of goods or services that you list in your application. So, there is no such thing as a free trademark registration.

VII. FREQUENTLY ASKED QUESTIONS

1. Can I trademark a phrase for free?

No, you can’t register a phrase for free. You can establish a common law trademark for free, however, by using the phrase to brand your products. Common law trademarks are free and do not require any paperwork or forms. There is no way to register a phrase trademark for free because you will always have to pay at least a small fee that covers the costs of examining and processing your trademark application. There is no way to get a federal trademark for free.

2. What is the least expensive way to trademark a phrase?

The cost to trademark a phrase is between from $250 to $350 per trademark class. This is the fee charged by the USPTO to accept your trademark application. The easiest way to submit an application to register your trademark is online through the USPTO’s Trademark Electronic Application System (TEAS).

3. What is the least expensive way to trademark a phrase?

The cost to trademark a phrase is between from $250 to $350 per trademark class. This is the cost to submit your trademark application to the USPTO. The easiest way to submit an application to register your trademark is online, through the USPTO’s Trademark Electronic Application System (TEAS). Learn about how to qualify for the lowest filing fee in our guide to TEAS.

4. What is the cheapest way to trademark?

There is a free option to get a trademark for your name, logo, or phrase. The way to get a free trademark is to establish common law trademark rights by using your mark to brand your business, products, or services. Common law trademark rights have limitations, but they can offer some protection for names, logos, and phrases.

5. Can you trademark things for free?

Yes, you can establish common law trademarks and no cost. However, you cannot register a trademark for free. The U.S. Patent and Trademark Office always charges a filing fee.

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Own Your Catchphrase!

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Michael Kondoudis

For more than twenty years, Michael Kondoudis has been the go-to trademarking expert for businesses of all shapes and sizes. Michael is a USPTO-licensed trademark and patent attorney, educator, speaker, and author of the Amazon best-seller: Going From Business Owner to Brand Owner. He is also an authority trusted by national news media on major trademark stories.

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).

www.mekiplaw.com

The DuPont Factors: An EASY Guide

May 22, 2023 by Michael Kondoudis

If you’re a trademark owner or planning to register for one, it’s crucial to understand the DuPont factors. They are a set of criteria used by the U.S. Patent and Trademark Office (USPTO) to register trademarks and by courts to help with trademark infringement cases.

By Michael Kondoudis, Small Business Trademark Attorney

This is our EASY guide to trademark DuPont Factors.

In this guide you’ll learn:

Trademark Basics
The origins of the DuPont factors
What they are
Why they matter & How they are used

So, if you need to learn about the DuPont factors, this guide is for you.

Let’s dive right in!

I. A BIT ABOUT TRADEMARKS

What is a Trademark?

A trademark is an exclusive right that a business or individual has to use a name, logo, slogan, or other symbol to identify products and services. Trademarks help protect a brand’s identity from competitors who may try to copy it while also preventing confusion among consumers. Trademarks protect brands.

What is a Registered Trademark?

A registered trademark is a trademark that has been registered with the United States Patent and Trademark Office (USPTO), which grants exclusive and nationwide rights to use the trademark.

How Do You Get a Registered Trademark?

You get a registered trademark by applying to the USPTO (United States Patent and Trademark Office). After registration, trademark owners may display the ® symbol to indicate it is protected by federal law.

How Does the USPTO Decide to Register a Trademark?

The USPTO decides whether to grant applications for trademark registration by assessing the “likelihood of confusion” between them and other existing trademarks. It uses the DuPont factors to make this determination.

II. THE DUPONT FACTORS

The USPTO decides whether to grant applications for trademark registration by assessing the “likelihood of confusion” between them and other existing trademarks. To do this effectively, it uses the DuPont factors. These factors represent a consistent and objective legal framework for comparing trademarks, ensuring fair decisions in the trademark registration process.

Beware: Even if two trademarks aren’t identical, they can still conflict if they are “likely to be confused.” That’s where the DuPont factors come in – they help identify potential conflicts and guide the decision-making process.

What Are the Dupont Factors?

The Dupont factors are a set of 13 criteria that the U.S. Patent and Trademark Office (USPTO) uses to assess the likelihood of confusion between trademarks. In other words, these factors help determine whether a new trademark can be registered or might infringe on someone else’s existing mark. Courts also use the Dupont factors to resolve cases of trademark infringement.

So, the USPTO uses the DuPont factors to decide whether to grant applications for trademark registration, and courts use them to answer questions of infringement.

Where Did The DuPont Factors Come From?

The DuPont factors originated from the landmark 1973 case of E.I. DuPont de Nemours & Co. v. Celanese Corp., which established their use in trademark litigation. The DuPont factors have since become one of the most commonly used tools for analyzing trademark applications.

Stop Worrying About Your Trademark

Schedule a Free Strategy Call

See How My Law Firm Can Help You Protect Your Trademark

New Applications – Legally own your trademark.

Office Actions – We can navigate the trademarking process at the USPTO.

Enforcement – Flex your trademark rights. Stop copycats.

How Many DuPont Factors Are There?

There are 13 DuPont factors.

Why Are The DuPont Factors Important?

The DuPont factors are THE test for whether a trademark can be registered or whether it infringes someone else’s mark. The Dupont factors are important because the trademarks can conflict (i.e., a likelihood of confusion) even if they do not match. Trademarks do not need to be identical to conflict. Instead, they just need to be confusingly similar. For example, if two companies have names that start with the same letter but contain different words, such as “Green Gizmos” and “Gorgeous Gadgets,” this could still lead to a trademark dispute.

List Of The DuPont Factors

The 13 criteria that make up the DuPont factors are:

1. Similarity or dissimilarity of marks: This factor considers how similar the two trademarks look, sound, and feel in appearance, sound, connotation, and commercial impression.

2. Nature of the goods and services: The USPTO compares the products or services associated with the trademarks determining whether they are similar or dissimilar.

3. Trade channels used: The third factor examines whether the trademarks are used in similar or different trade channels, such as retail stores, online platforms, or others.

4. Purchasing conditions: This factor evaluates the conditions under which sales are made and if the buyers involved tend to make impulse purchases or carefully consider their options before buying.

5. Fame of the existing mark: If the prior mark has a strong reputation or significant fame, it may be more susceptible to confusion with a newly proposed trademark.

6. Similar marks with similar goods: This factor takes into account the number and nature of similar trademarks used with similar goods or services in the market.

7. Actual confusion between the marks: The USPTO looks for any existing evidence of confusion between the two trademarks in question.

8. Length and conditions of concurrent use without confusion: The office considers whether the two trademarks have been used simultaneously without causing confusion for an extended period.

9. Variety of goods and services associated with the marks: The USPTO evaluates if the trademark is used or not used with a range of different products or services.

10. Market interface: This factor assesses the interactions and competitive relationship between the applicant and the owner of the existing trademark.

11. Applicant’s right to exclude others: This factor measures the extent to which the applicant has the right to prevent others from using the trademark on specific goods or services.

12. Extent of potential confusion: The USPTO tries to gauge the possible level of confusion that could arise between the two trademarks.

13. Other established facts: Any additional relevant information that could help determine the impact of trademark use is also considered.