You can trademark a name for free with a “common law” trademark and establishing a common law trademark doesn’t require any forms or fees. However, you cannot register a trademark for a name for free.
By Michael Kondoudis, Small Business Trademark Attorney
This is our EASY guide to trademarking a name for free.
You may have heard that you can trademark your name for free. Is this true? The answer is both yes and no.
It is possible to get some trademark rights just by using a trademark. But, those rights are limited and pale in comparison to trademarks registered with the U.S. Patent and Trademark Office.
In this post, I’ll explain exactly how to trademark a name for free, and this information applies to logos and phrases as well.
So, if you want to learn how to trademark a name for free, this guide is for you.
Let’s get started!
CONTENTS
I. TRADEMARKING FOR FREE
How to Trademark a Name for Free
You can trademark a name for free by getting a common law trademark. A common law trademark can be a great way to protect your name without incurring the cost of registration.
Can You Trademark a Name for Free?
Yes, you can trademark a name for free by establishing a “common law” trademark through use of the name in commerce. This means using the name to brand your company, business, product, or service. You cannot register the name 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 name.
RELATED: How to Register a Band Name
How to Trademark a Phrase for Free
There is a way to trademark a phrase for free by establishing a common law trademark. A common law trademark can be a great way to protect your phrase without having to pay for registration.
Can You Trademark a Phrase for Free?
Yes, you can trademark a phrase for free by establishing a “common law trademark” simply by using your phrase in commerce. This means using the phrase to brand your business, products, or services.
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.
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.
Common law trademarks are not registered with the government but are still protected under the law.
Common law trademarks are established through use in commerce. They are based on use, through actual use in commerce rather than through registration.
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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 obtain than federal trademarks. There are far fewer requirements. Common law trademark rights come from use in commerce.
Second, common law trademarks are much less expensive than registered federal trademarks. It is cheaper 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 in less time than registered trademarks. All that is required is use in commerce.
The Limitations of a “Free” Common Law Trademark
Common law trademarks can provide valuable protection for businesses, but they have limitations. The two most important limitations are geographic and enforcement.
First, common law trademark rights are limited to the geographic area where a mark is used. They are not national, unlike registered trademarks. That means that other businesses outside of your local region could use your name or slogan, and you would be unable to stop them. So, if you plan to expand your business into multiple markets, you should consider registering your trademark with the USPTO.
Second, enforcing common law rights is far more complex and expensive. 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.
The surest way to LEGALLY own your trademark is to register it with the U.S. Patent and Trademark Office. Federally registered trademarks are stronger than common law trademarks. Read about the advantages of trademark registration here.
III. HOW TO GET A COMMON LAW TRADEMARK
How to Establish a Common Law Trademark
To establish a common law trademark, you will need to do two things:
1. Use the mark 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 mark in a way that identifies it as being associated with your goods or services. For example, you could use the mark on packaging, labels, signage, or advertisements.
Secondary meaning
This can be shown by promoting the mark 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.
Once you have established a common law trademark, you can enforce it against infringements in certain situations. However, note that common law trademarks do have some limitations.
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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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 name 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 name 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.
Common Law Trademarks: Limited Protection
One way to trademark a name for free is by obtaining a common law trademark. This type of protection is established through commerce use and taking important steps to prevent others from using your name. Unlike Federal trademarks, common law trademarks do not require any forms or fees, making it ideal for small businesses on a budget.
However, there are some limitations when it comes to common law trademarks. Two of the most significant challenges are:
- Geographic limitations: A common law trademark is usually limited to the geographical area where your business operates. This can be a disadvantage if you plan to expand your business and reach new customers across the country.
- Enforcement challenges: Enforcing a common law trademark might be more difficult than a registered one. Without a record of your distinct mark in the government database, disputes could become convoluted and time-consuming.
These are significant drawbacks.
Federal Trademarks: Stronger Protection But With Costs
For businesses seeking nationwide protection and legal exclusivity, a Federal trademark may be the better option. Obtaining a Federal trademark involves registering your name or phrase with the U.S. Patent and Trademark Office (USPTO). This enhanced level of protection offers several advantages:
- Nationwide legal rights: A federal trademark gives you exclusive rights across the entire country, regardless of the geographical location of your business.
- Easier enforcement: With a Federal trademark, disputes are generally more straightforward to manage, as there is an official record of your ownership.
However, when it comes to the cost, there’s one essential fact to note: there is no way to register a Federal trademark for free. Every application filed with the USPTO must be accompanied by a non-refundable filing fee, which ranges from $250 to $350 per class of goods or services.
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 name for free?
No, you cannot register a trademark for free, but you can establish a common law trademark for free by using the name to brand your products. Common law trademarks are free and do not require any paperwork or forms. There is no way to register a name 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. Can I trademark a phrase for free?
No, you can’t register a phrase for free, but you can establish a common law trademark for free 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.
3. What is the least expensive way to trademark a name?
The cost to trademark a name 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).
4. 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.
5. 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.
6. 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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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).
